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# 


CIVIL 
PROCEDURE   REPORTS. 

CONTAINING  CASES  UNDER  THE 

CODE  OF  CIVIL  PROCEDURE 

AND 

THE  GENJIRAL  CIVIL  PRACTICE 

OF   THE 

STATE  OF -NEW  YORK. 

REPORTED  WITH   NOTES 

BY 

HEITRY  H.  BRO^WNE 

OF  THE    NEW   YORK    BAR. 


wrrn  a  reference  to  the  sections  op  the  code  of  civil  pro- 
cedure CONSTRUED   OR   CITED   IN   THE   OPINIONS    CONTAINED    I2S" 
THE   FOLLOWING  REPORTS,  ISSUKD  DURING  THE   PERIOD   COV- 
ERED  BY  THIS  VOLUME  :     NEW  YORK  REPORTS,   VOLS.   95 

AND  96  ;   hun's   REPORTS,  VOLS.   'S2  AND  'S'S ;   Ab- 
bott's   NEW    CASKS,    VOL.     14  ;    HOWARD'S    PH. 

VOL.  67  ;  N.  Y.  SUPER  roR  court  reports, 
VOL.    50  ;     demakkst's    surrogate 

REPORTS,  VOL.   2  ;    AND  N.   Y.   ClVHi 
procedure   reports,  VOL.    6. 


VOLUME    VI. 

NEW  YORK: 

S.  S.  PELOUBET, 

LA.W  PUBLISHER  AND   BOOKSELLER, 

80    NASSAU    STREET. 
1885. 


I    J 


R<1 


COPTRIGHT 

g   S.  PELOUBKT, 
18W. 


CONTENTS. 


'Beetionsof  the  } 

•  Code  of  Civil  Procedure,  f  Page 

■•'fS,  11,  14  In  re  Jones. 250 

Contempts  punishable  civilly;  form  of  Warrant. 

.'  14         Stephenson  v,  Hanson 43 

»  Wiiere  surety  to  undertaking  guilty  of  contempt; 
punishment. 

55  Gearon  v.  Bank  von  Savings 207 

Party   to  action  when -not   liable  for  false   arrest 
directed  by  his  attorney. 

::  341         Been  AN  v.  N.  Y.,  W.  S.  *  B.  R.  R.  Co 848 

County  courts;  jurisdiction  of,  of  actions  against 
domestic  corpomtions. 

,:,  382         Knapp  v.  Simon. 1 

Statute  of  limitations;  application  of,  to  broker's 
contract. 

-  •  388         Estate  of  Sta«o,  deceased. 88 

Surrogate's  court ;  limitations  to  proceedings  for 
accounting. 

4888,  393     Estate  of  Collins,  deceased 85 

Same  subject. 

401         Engle  v.  Fischer 307 

Limitations  of   Actions;  coming  into  state;    con- 
cealment in  state. 

-419         Sweet  v.  Sanderson  Brothers  Steel  Co 69 

Comphiint;  etfect  of  service   of,   after  service  of 
summons  and  before  appearance  of  defendant. 

'-^21         Cole  ».  McGarvey 305 

Special  appearance;  discontinuing  action  after. 

,-422        Sweet  v.  Sanderson  Brothers  Steel  Co 69 

Complaint;  service  of;  time  to  answer. 

424        Phelps  v.  Phelps 117 

Appearance;  what  amounts  to. 

^^436,  436,  437  Smith  v.  Fogarty 366 

Substituted  service  of  summons;  affidavit;  time 
to  answer. 


W  CONTENTS. 

Sections  of  the  J 

Cade  of  Civil  Procedure,  f  P*g» 

438,  439    Syracuse  Savikgs  Bank  v.  Btjrtojc. 216 

Summons  ;    service   by    publication    on    infant; 

questioiiii)g  regularity. 
439         Phelps  p.  Phei.ps 117 

Service   by    })ublicatioB;    certificate  to   affidarit 

taken  without  the  state. 
447         Keeler  v.  McNeirney 863 

Panics  to  action  to  foreclose  mortgage. 

449  ViADERo  V.  Morton 2^8 

Auctioneer's  bond;  actioii  on,  by  whom- brought. 

450  Laude  v.  Smith 51 

Parties  to    action    against    married    woman    for 

slander. 
450        MusER  T.  Lewis 135 

Liability  of  husbaud  for  Trife's  tortS. 
454         ViADERo  V.  Morton 238 

Parties  to  action;    when  all  the  obligors  in  bond 

not  necessary. 
473         Cole  v.  McGarvey 305 

Guardian  ad  litem;  acknowledgment  of  consent 

to  be. 
479         Sweet  v.  Sanderson  Brothers  Steel  Co 69 

Complaint;  when  to  be  served. 
481         Sprague  V,  Parsons .....     20 

Pleading  in  action  on  undertaking  on  attachment. 
484         De  Silver  v.  IIoldkk 121 

Joinder  of  causes  of  action  for  false  representa- 
tion and  conversion. 
;    488,  499     Heenan  v.  N.  Y.,  W.  8.  &  B.  R.  R.  Co 348 

Jurisdiction;  objection  to  want  of,  how  raised. 
600         Henderson  v.  Scott 39 

Pleadings;  former  recovery  when  to  be  pleaded. 
600         LiDGERWooD  M'f'g  Co,  v.  Baiiid 54 

Pleadings;  denial  in  answer  on  information  and 

belief. 
500,  501     Barnes  v.  Gilmore 286 

Counterclaim;  when  sufficient. 
623,  529     Frist  v.  Cumm 80 

When  verification  of  answer  may  be  omitted. 
624         LiDGERWoon  M'f'g  Co.  v.  Baird 54 

Denials  iu   answer  may  be  on  information  and 

belief. 

688        Phklps  v.  Phelps 117 

Verification  of  pleading;  defective. 


CONTENTS. 


Sections  cf  the 


Code  of  Civil  Procedure.  |  Pag« 

529         Fkist  ».  Oi^iMM 30 

Verification  of  answer;  oniittiug. 

531         Snippen  v.  Peck 188 

Stay  of  proceedings  in  order  for  bill  of  particulars 
does  not  extend  time  to  answer;  vacating. 

-  §31  OrPEN  GEKMAiaA  «.  Devendeu 161 

Bill  of  particulars;  vvheri  required  in  action  for 
money  misappropriated  by  officer  of  society  or 
through  his  negligeuce.    ■ 

031         Hayes  v:  Davidson 330 

Bill  of  particulars;  wlien  ordered  iu  action  by 
assignee  against  sheriff 'for  conversion. 

-  ti21         Feely  v.  Manhattan  R'y  Co 414 

Bill  of  particulars;  when  required  of  answer  alleg- 
ing waiver  and  laches  as  defense. 

t539-54l     Knapp  ».  Simon 1 

.  Pleadings;  when  court  will  give  party  benefit  of 
cause  of  action  establislied  by  evidence  «otwitli- 
standiug  insufficiency  of  pleadings. 

■.C49  mbd,  1  Kauj'Man  v.  .,Lindnjeu 148 

Fraud;  wiiat  amounts  to,  iacontiacting  liabilitj; 
necessity  of  pleading. 

649         Straus  v.  Kreis 77 

Order  of  arrest;,  when,  complaint  or  affidavit 
stating  its  contents  to,  be  presented  on  ^applica- 
tion for. 

,:  549j:  550     Stern  v.  Moss 184 

.Execution  against  the  person  when  issued  out  of 
District  Court  in  the  City  of  Jifew  York. 

•-550         Ross  ».  WiGG 263 

.Order  of  arrest;  when  not.vacated  when  prima 
facie  csiHe  made  out. 

550  Boss  V.  Wi(i/g  (note) 268 

Same  subject. 
^'602«t«c^.    PncENix  Foundry  and  Maohtne  Co.   o.   North 

River  Const.  Co 106 

,  Opder  staying  proceedings ;  when  not  void ;  insuffi- 
cient service  of. 

•Ai>603  et  eeq.    Reis  v.  Rhode 406 

Injunction;  power  of  court  to  grant  restraining 
interference  with  acting  trustee  of  religious  cor- 
poration by  rival  claimant  of  the  office. 
->..£86      -  Eeminoton  Pafeb  Go.  v.  O'Doughe-rtt ^ .     79 


Ti  CONTENTS. 

Sections  of  the  { 

Code  of  Civil  I^ocedarc.f  PM«  ' 

Attachment;   when  will   not  lie;  judgment    or 

statutory  liability  not  contract, 
[  635  et  seq.    McBlaine  v.  Speklman 401 

Atracliment;  questioning  validity  of  in  collateral 

action. 
636         SMiirn  v.  Fogarty 366  < 

Attachment;    when  affidavit  on  which,  granted 

insufficient. 
636         Ross  V.  Wigs 263 

Attaclunent;  vacation  of,  when  prima  /acie  case 

made  out. 
636  Bolts  V.  Wigr;  {note) 268 

Same  sul)ject. 
640         SFnAGUK  V.  Parsons 26 

Attiiclimeut;  action  for  damages  resulting  from, 

void  or  irregular. 
648,  649    Aktdony  v.  Wood 164  " 

Attachment;  levying  on  promissory  note,   etc.; 

prior  fraudulent  transfer. 
682         McBlaike  v.  Speelm an 401  ■ 

Attacliment;  when  validity  cannot  be  questioned 

in  collateral  action. 
71ft         Ross  V.  WiGG. 263 

When -one  of  two  provisional 'Remedies  granted  at 

the  same  time  vacated: 
jTlft         Ross  V.  Wigif  (note) 268  ' 

Same  subject. 
723         People  ex  rd.  Hekkimeu  aki>  Mohavtk  R.  R.  Go. 

V.  AssKssoRS  OP  THE  TowN  OF  Heukimer 297' 

Certiorari;  amendment  ofi 
755-757     Dock  v.  South  Brooklyn  Saw  Mill  Co 144 

Revival  and    continuance   of   action    in   case   of 

death  of  plain  tin ;  lissignee-of  executor;  counter- 
claim. 
769         U.  S.  Tkust  Co,  d.  N.  Y.,  W.  S.  &-B.  R.  R.  Co   . .     90 

Receiver  of  corporati9n;  motion  for  appointment 

ol,  where  made. 
76ft         PntENix  Foundry    and  Machine  Co.   v.   North 

RiVEU  Const.  Co 100 

Motion  to  vacate  injunction  order  where  made. 
776         Apsley  v.  Wood 178  > 

Renewal  of  motion  ;  what  amounts  to  new  proof 

on. 
781^783    Snifiten  D.  Peck.. 18»- 


CONTENTS.  vii 


Sections  of  the  \ 


Gode  of  Civil  Procedure.  J  P«ig« 

Stay  of  proceedings  ;  not  extension  of  time  to 
answer. 

803  et  seq.    Mehesy  v.  Eahn 33 

Order  for  inspection  of  books  when  granted. 

811         McGean  v.  MacKellar 169 

Undertakings  ;  guarantee  of^  by  corporation; 
justification. 

811  Earle  v.  Earle  {note) 171 

Same  subject. 

813         Stephensok  v.  Hasson 43 

Undertaking  on  order  of  arrest;  effect'  of  appeal 
from  judgment  in  action  in  which  it  was  given 
on  liability  under. 

8^7         Apsley  «.  Wood 178 

When  report  of  referee  to  take  proof  on  mo- 
tion should  stand. 

8S8,  839     Wilson  v.  Munoz. 71 

Evidence  in  action  against  admintrator  ;  what 
proof  of  interet^t  necessary  to  exclude  witness. 

838,  839    Estate  of  Lb  Baron 63 

Evidence;  to  exclude  testimony,  in  surrogate's 
court  on  ground  of  interest  must  be  objected  to 
by  executor,  administrator  or  survivor  ;  objec- 
tion by  creditor  insufficient. 

839         Taylor  v.  Meldrom , 235 

Evidence  of  personal  transaction  between  party 
and  deceased  person  through  whom  both  parties 
claim. 

887         Davenport  Glucose  Co.  v.  Taussig 153 

Examination  of  party  before  trial  ;  questions  tend-i 
ing  to  criminate  witness. 

844         Ross  V.  WiGG 263 

Affidavit  taken  without  state;  who  authorized  to 
take ;  form  of  certificate  to. 

844         Ross  V.  Wigg  (note) 268 

Same  subject. 

844         Phelps  ».  Phelps 117 

Certificate  to  affidavit  taken  without  the  State. 

854-857     In  re  Jones 250 

Contempt  of  witness  in  not  answering  proper  in- 
terrogatories, how  punished. 

867-869    Pruden  v.  Tallman 860 

Supplementary  proceedings;  mode  of  compelling 
production  of  books  on  examination  in. 


viii  CONTENTS. 

Sections  of  the  ) 

Code  of  Civil  Procedure,  f  Pig* 

867-869    Jlolmes,  Booth  <&  Eayden  v.  Steitz  (note) .  ^. 363 

Same  subject. 

870         Davenpoht  Glucose  Co.  v.  Taussig 153 

Examinatiuu  before  trial;  ia  action  to  recover 
cliatteliJ,  sale  of  which  was  procured  by  fraud; 
of  assignee  for  benefit  of  creditors. 

'-■    970-972     Learned  t.  Tili-otson 425 

Verdict  of  jury  on  specific  questions  of  fact  in  ac- 
tion triable  by  court;  power  of  court  to  disregard. 

977         Haberstich  «.  FiscHEK 82 

Notice  of  trial;    what  amounts  to  waiver  of. 

993  GOETTLING  V.   BlEHLEtt 824 

Findings;    effoct   of    failure  to  make,    because 
deemed  unnecessary. 
997         In  re  N.  Y.,  West  Shork  and  Boppalo  R.  R.  Co 

TO  ACQUIRE  lands  OP  JUDSON 803 

'                              Appeal;    report  of  commissioners  in   proceedings 
to  acquire  hind  for  railroad,  how  corrected. 
1003        Learned  t.  Tillotson  425 

,  .  Verdict  of  jury   on  specific  questions   of  fact; 

effect  of. 

1018  Adams  v.  City  op  Utica 294 

Compulsory  reference;  wl>en  ordered  in  action  by 
attorney  for  services;  proof  of  value  of  such  ser- 
vices. 

1019  Little  v.  Lynch. 418 

Referee's  report;   what  is  suflScient  delivery  of. 

1023  GOETTLING    1).   BlEHLEK 824 

Findings;  how  disposed  of  by  cotirt  before 
■whicli  action  tried. 

1206  Laude  ®.  S.mith 51 

Husband  not  proper  party  to  action  against  wife 
for  slander. 

1207  Jenks  v.  Van  Bkunt. 158 

Power  to  amend  complaint  on  appeal. 

1216        Smith  v.  Fooarty 366 

Proof  on  entry  of  judgment  on  substituted  service. 

1260  WoODKOliD  V.  R.\SBACK 3J5 

Woodford  o.  Chapman 315 

Satisfaction  of  judgment  by  attorney ;  cannot  be 
I  on  partial  payment  thereof. 

,'         1269        Kaufman  v.  Lindner 14i 

Bankruptcy;    discharging    judgment   of    record 
t  wb<rc  debtor  diuchari^ed  in. 


C0NTENTS. 


IX 


tSections  of  the  t 


Cade  of  Civil  Procedure,  f  Pago 

1316        Be  Silteb  «.  HoLDBiu 131 

Appeal  from  final  judgment  overruling  demurrei 
brings  up  order  for  review. 

1336  McGean  c.  MacKellau 16^ 

Corporate  guarantee  of  .undertaking  on  a|)peal. 

13a6        ■■■Earle-v.  Earle.{note) 171 

Same  subject. 

!  1S26  et  seq.  Hukd  v.  Hankibal  &  St.  Joskps  K.  R.  €o     €86 

Same  subject  ;  form  of  undertaking-,  justification. 

1328,  1329,  )  Goodwin  ».  Bunzl .'. 236 

1335       .^Undertaking  on  appeal;   wliea  sweties  ou  defect- 
ive, liable. 

1337  Leauned  v.  Tiixotson 425 

Appeal;  reviewing  facts  oo,  in-court  of  appeals. 

1342       XiPPiNCOTT  V.  Westray ,74 

"What  brought  up  for  review  by  appeal  from  order 
denying  application  far  resettlement  of  order. 

>.,1352        White  v.  Rintoul .• . . . 35^9 

Undertaking  on"  appeal;  form  of,  when  guaran- 
teed by  corporation. 

1366        Ansonia  Brass  akd  Copper  Co.  v.  Conner 178 

Time  of  sheriff  to  return  execution  exte&ded  by 
rStay  of  proceedings. 

i  1421-1425   Hayes  v.  ^Davidson 377 

Substitution  of  indemnitors. for,  in  action  against, 
,for  wrongfully  taking,  etc.,  personal  property  ; 
liability  of  indemnitors;  waiver  of  objection. 

1498        Keeleu  v.  McNeirney ^63 

Foreclosure  of  mortgage  ;<iuestion3  wbich  cannot 
be  tried  jn  action. for. 

1498        Kent  v.  Popham 336 

Same  subject.  Proper  pjirties  to  action  .for  fore- 
closure. 

i515,  1531   Henderson  «.  Scott 89 

Ejectment;  damages  on  recovery  of  real  property 
in;  ouster. 

.1632        Kent  v.  Popham 386 

Foreclosure;  effect  of  sale  in,  on  title  of  persons 
claiming  adversely  to  mortgagor  and  mortgagee. 

1695,  1699  Irk  v.  Schroeder 253 

Effect  of  error  in  replevin  on  judgment  in  Jus- 
tice's court. 
.(1809,  1810  Phoenix  Foundry  and  Machine  Co.   v.   North 

RivjEB  Const.  Co ...i. 1Q8 


CONTENTS. 


Sections  of  the  I 


Code  of  Civil  Procedure.  1  Pag*' 

Receiver;  power  of  Supreme  Court  to  appoint,  of 
insolveut  foreign  corporation. 
1809,1810  WoEuisHOFPEK  p.  North  RivEU  Construction  Co.  11^ 
Same  subject;  notice  to  attorney  general. 
laie        U.  S.  TnusT  Co.  V.  N.  Y.,  W.  S.  &.  B.  R.  R.  Co. .     90^^ 
Appointment  of  receiver  of  domestic  corporation; 
where  made. 

1810        In  re  E.  M.  Bovnton  Sa.w  and  File  Co 349"- 

Voluntary  dissolution  of  corporaliou;    appoint- 
ment of  receiver;  when  may  be  made.    • 

1819        Estate  OF  Collins,  deceased 85  ^ 

Limitations  to  proceeding  tU compel  executor io 
account, 

1«)2,  1903  Thomas  v.  Utica  &  Black  R.  d.  R.  Co. 35»- 

Action  for  causing  death  ;  measure  of  damages. 

1904        Boyd  ».  N.  Y.  C.  &  II.  R.  R.  R.  Co. 223' 

What  is  "  recovery"  in  action  for  causing  death, 

1948  et  ««£.  Reis  v.  Rhode 40d  - 

Iteligious  corporation;  determination  of  title  of 
rival  claimants  to  trusteeship  of,  cannot  be  made 
in  equitable  action  brought  by  one  claimant. 
1991,  1992   People  ea;  re?.  Herkimer  and  JI-wawk  R.  R.  Co. 

«.  Assessors  of  the  Town  op  Herkimer.  ...    . .  297" 

Certiorari;  effect  of  omission  of  seal. 

2015  et  seq.,  )  People  ex  rel.  Hoyle  v.  Osborne 290^ 

2019        )       Habeas  Corpus  to   secure   custody   of   child;  by 
whom  issued. 
2129        People  ex  rel.  Herkimer  and  Mohawk  R.  R.  Ca 

«.  Assessors  of  the  town  of  Herkimer 297' 

Certiorari;  assessors  of  town  to  bo  designated  ia, 
by  individual  names. 

2285        In  re  JoNes : 250^ 

Contem])t;  punishment  for. 

2419  et  seq.   In  re  E,  !M.  Boynt'on  Saw  and  Filh  Co 843. 

Voluntary  dissolution   of  corporation;    contents 
of  report  of  referee,  or  decision  of  court  on. 

2482  et  seq.    Pruden    v.  Tallman 360 

Production  of  books;  supplementary  proceedings. 

2432,  et  seq.    Holmes,  Booth  <&  Unyden  v.  Stietz  (note) 363 

Same  subject. 

2483        Lippincott  p.  Westray 74 

Supplementary   proceedings  ;    order   appointing 
receiver,  by  witom  made. 
2435,2436    Sei.icma»  c.  Wallach. ; 283. 


CON'TENTS.  xi' 


Sections  of  the  ) 

3.  f 


Oodeof  Civil  Procedure,  f  Page> 

Supplementary  proceedings;  extent  of  examifia- 
tion  in,  when  debtor  has  made  assignment  for 
benefit  of  creditors, 

2444        ITolmes,  BOoth  <&  Ilaydenv.  Stietz  {note). 362  " 

Supplementary  proceedings;  production  of  buoks. 

2464        Strohn  v.  Epstein 36-  ' 

Supplementary  proceedings;  receiver;  notre  of 
application  for. 

24^4        De  ViviHR  <o.  Smith 394/^ 

Supplementary  proceedings;  appointment  of  re- 
•ceiver. 
Note  on  Appointment  of  Receiveb  in  Supple- 
mentary Proceedings 306 

2481  suM.  6  Estate  op  Singer,  deceased 389- 

Accounting  of  executor,  trustee  and  guardiau; 
opening  decree. 

2481  »uhd.  7  In  re  Jones 250 

Power  of  surrogate  to  punisli  for  contempt. 

2481  suM.  6  )  Estate  or  Tilden,  deceased 15  * 

2537  y  Surrogate's  court;  powtr  of ^uiTogate  and  of  sup- 
reme court  to  open,  vacate  and  set  aside  account- 
ing of  executors;  eflFect  of  irregular  service  of 
citations  ;  appointment  of  guardian  ad  litem. 

2&11        Estate  op  Bogert,  deceased „ . . .  128 

Probate  of  will;    proof  on. 

2615        In  re  Powers,  deceased 326 

Probate  of  will;  when  aliens  should  be  cited  to 
attend. 

2618,  2623  Estate  op  Bogeut,  deceased 138 

Will ;  when  properly  admitted  to  probate  agninst 
testimony  of  subscribing  witness. 

2733        Estate  of  Collins,  deceased 85  - 

Proceedings  for  accounting  of  executor;  limita- 
tions. 

2723        Estate  of  Stagg,  deceased 88 

Same  subject. 

2743        Estate  op  York,  deceased > 245 

Jurisdiction  of  surrogate  to  determine  rights  of 
legatees. 

2750        Estate  op  Le  Baron,  deceased 63 

Surrogate's  court;   sale  of  property  to  pay  debts. 

2876        Irr  v.  Schroeder 25S..! 

Justice   of   the   peace;   provisioaal  remedies  in .^. 
courts  of . 


xn  CONTENTS. 

Sections  of  the  I 

Code  of  Civil  Procedure.  J  Page 

2894-2904   SxiiMtN  »,  Moss 184 

Arrest  in  N.  Y.  District  Court. 

2901,2903,    )Iim  e.  ScuHOEDER 253 

2i>i6,  2917,    \     Jtisticc'/of  the   peace;  provisional  remedies   ia 
2920,  2925,    {      courts  of. 
.5933         ] 

29C6        LivixGSTOS.  V.  IIourissey 28 

Justice's  court;  depositions  takca  ou  adjourn 
ing  case. 

3002        Jn  re  J^ones 25© 

Contempt;   contents  of  warrant  of  cooapiitmcnt. 

3016        AixjiN  V.  Swan » 56 

Justice's  court;  when  offer  to  reduce  verdict  may 
be  m;ido;    power  of  justice  to  alter  rccowJ. 

8046,  3048   A^-l>HEWs  «.  dNYDER." 835 

Appeal  from  justice's  court;  mode  of  service  of 
notice  of  appeal. 

-■8063        Iru  v.  ■Schroedkr 253 

Justice  of  tlMj  peace;  effect  of  error  in  costs  .on 
judgment. 

.-8070        Allen  «.  &wan  .• 56 

Justice's  court;  app^tvl;  right  to  costs. 

:8174        Oakes  v.  Harway 857 

City  court  of  New  York  ;  counter-claims  in  action 
in,  Ijrougiit  by  executor. 

.,.8191        Walsh  ».  Schulz , ^26 

City  court  of  New  York;  appeals  from  discretion- 
ary orders  of;  "relation  Of  court  of  common  pleas 
to. 

•8191        WiLLMORE  «.  Flack 191 

Appeal  from  N.Y.  city  court. to  N.  Y.  court  of 
common  pleas;  no  jurisdiction  where. new  trial 
ordered  unless  consent  to:£naI  judgment  on  such 
appeal  is  given. 

8209-3211   Stern  v.  Moss 184 

Arrest  in  N.  Y".  district  courts. 

,  8247        Remington  Paper  Co  v.  O'Doughertt ,79 

Obligation  cieated  by  statute  not  contract. 

8251        WooDFOHD  V.  Rasback 315 

Woodford  v.  CnAP.MAN 8.15 

Fees  of  referee  appointed  to  take  proof  on  motion. 

.  8253        Rutty  v.  Person «85- 

Allowance;  vfhat  is  sufficient  monetary  t>asis  for. 
JSiiiZ        BoBD  V.  N.  Y.  C.  &  H.  li.  R.  R.  Co. ....  .^ 224 


CONTENTS.  xiii 


ScctroBS  ®f  the 


Code  of  Civil  Procedare.  )■  Pag« 

Extra  allowance;  basis  of,  in  action  for  causing 
death. 

3268        Kkom  v.  Kursheedt 371 

Security  for  costs;  non-residfence. 

3268,  3269  Fitzsimmons  v.  Curley 156 

Same' subject;  laches. 

8278        Krom  v.  Kursheedt . . ....  371 

Security  for  costs;  liability  of  attorney  for  costs. 

CORNWELL  e.  DiCKEIi 416 

N.  Y.  district  court;  right  of  party  to  be  beard 
in,  by  counsel  on  conelusion  of  case. 


TABLE  OF  CASES  HEPORTED. 


i'-Adams  c.  The  City  of  TJtica 

Allen  V.  Swan 

■Andrews  »-.  Snyder 

i-Ausonia  Brass  &  Copper  Co. 

V.   Conner 

Antliony  v.  Wood , 

. .  Apsley  tJ.  Wood 

. .  Assessors  of  Town  of  Herki- 
mer, People  ex  rel.  Her- 
>..  kinaer  «&.  Mohawk   R.    R. 
•    Co.  c 

B 

'.  Baird,  Lidgerwood  MTgCo.  v. 
i  Bank  for  Savings,  Gear-on  v. . 

Barnes  p.  Gilmore 

.  Bieliler,  Goettling  v 

Bogert,  Estate  of 

,  Bord  V.  N.  Y.  C.  &  H.  R.  R. 
R.  Go.'. 

Boynton  Saw  &  File  Co.,  In  re 
.    BuDzl,  Goodwin  v 


Page 

294 

56 

333 


297 


54 
207 
286 
824 

128, 

222 
342 


Page 
Conner,  Ansonia  Brass  &  Cop- 

ixjr  Co.  V 173 

Cornwell  v.  Dickel 41C 

Curley,  Fitzsimmons  v .156 


173  .D 

164 

jiyg  Davenport    Glucose     Co.     v. 

Taussig    152 

Davidson,  Hayes  » 330 

Davidson,  Hayes  v 377 

De  Silver  v.  Holden 121 

Deveuder,  Orden  Germania  z).  101 

De  Vivier  v.  Smith 394 

Dickel,  Corn  well  t) 416 

Dock  V.  South^Bkl'n  Saw  Mill 

Co 144 


EarU  V.  EarJe  (note) 171 

E.   M.    Boynton    Saw   &   File 

Co.  In  re 342 

Ensle  V.  Fischer 307 


220  Epstein,  Strohn  v <  36 


Chapman,  Woodford  t> 315 

City  of  Utica,  Adams  « 294 

Climm,  Frist  tJ 30 

Cole  V.  McGarvey SOoJFitzsimmons  v.  Curley 

Collins,  Estate  of 85iFlack,  Willmore  v 

£xiv] 


Feely  v.  Manhattan  R.  R.  Co.  414 

Fischer,  Engle  v 307 

Fischer,  Haberstich  v 83 

...  156 

...  191 


TABLE  OF  CASES  EEPGRTED. 


KV 


Page 

Pogarty,  Smith  v 366 

Frist  f>.  Climm 30 

Q 

Xsr  Jlraore,  Barnes  v -^86 

Goettling  «.  Biehler 334 

Goodwin  ©.  Bunzl 326 

H 

-Haberstieb  t);  -Fischer '82 

Hannibal  &  St.  Jo.  R:  R.  Co., 

Hurd  V 886 

Hanson,  Stephenson  v 48 

Harway,  Oakes  « 857 

Hayes  c.  Davidson ^30 

Hayes  v.  Davidson 377 

vHeenan  v.  N.  Y.,  Wi'S..-&.  B. 

R.  R.  Co S48 

Henderson  v.-  Scott 39 

Holder,  De  Silver  v 121 

<i .Holmes,    Booth    &  .Hay den  v. 

Stietz  {note) 362 

-Hurd   V.  Hannibal  «fe  St.  Jo. 

R.  R.  Co 386 


Irr  V,  Schroeder .253 


Jenks  V.  Van  Bnnit 158 

Jones,  In  re 350 


Kahn,'  Mehesy  v 33 

Kaufman  ®.  Lindner 148 

Keeler  v.  McNeirney 863 

Kent  V.  Popham 336 

Knapp  V.  Simon 1 

Kreis,  Straus  v.. 77 

Krom  V.  Kursheedt 371 

^-Eursheedt,  Krom  io 371 


Page 

Laude  v.  Smith 51 

Learned  v.  Tillotsoa 335 

Le  Baron,  Estate  of 62 

Lewis,  Muser  v 135 

L4dgerwood  M'f'g  Co.  «.  Baird    ^S4 

Lindner, , Kaufman  v 148 

Lippincott  v.  Westray -74 

Little  V.  Lynch 418 

Livingston  v.  Morrissey 28 

Lynch,  Little  «,.... 418 


M 


McBlaine  «.  Speelrnan 401 

McGarvey,  Cole  v 305 

McGean  «.  MacKellar 169 

McNeirney,  Keeler  » 863 

MacKellar,.  McGean  r 1C9 

Manhattan  R.  R.  Co.,  Feely  v.  414 

Mehesy  v..  Kahn ,33 

Meldrum,  Taylor  v 335 

Morton,  Viadero  v 338 

I^Icrrissey,  Livingston  « 38 

Moss,  Stern  v 184 

Munoz,  Wilson  v 11 

Muser  v.  Lewis 185 


N.  Y.  C.  &  H.  R.  R.  R.  Co., 

Boyd  V 233 

K  Y.,  W.  S.  &  B.  R.  R.  Co., 
Lire.,  to  acquire  land  of 
Judson 303 

N.  Y.,  W.  S.  &B.  R.  R.  Co., 

Heenan  v 348 

N.  Y.,  W.  S.  &  B.  R.  R.  Co., 

U.  S.  Trust  Co.  V 90 

North  River  Construction  Co., 
Phoenix  Foundry  ■&  Ma- 
cliine  Co.  v 106 

North  River  Construction  Co., 

Woerishoffer  d..,. 113 


XVI 


TABLE  0¥  CASES  REPORrED. 


o 

Page 

O.ikes  V.  Harway 357 

O'Dougherty,  Remington  Pa- 
per Co.  V 79 

Ordeu  Genuania,  Devender  ®.  161 

Osborne,  People  «;  r«Z.  Heyle  v.  299 


Parsons,  Sprague  <?. 26 

Peck,  Sniffen  0 188 

People  ex  rel.  Herkimer  &  Mo- 
hawk R.  R^  Co,  V.  Asses- 
sors of  the  town  of  Her- 
kimer    297 

People  ex  rel.  Hoyle  v.  Osborne  299 

Person,  Rutty  v 25 

Phelps  t).  Phelps.... 117 

Phoenix  Foundry  &  Machine 
Co.  V.  North  River  Con- 
struction Co 106 

Popham,  Kent  v 336 

Powers,  In  re 326 

Pruden  v.  Tallman  . . . , 360 

R 

Rasback,  Woodford  v 315 

Rcis  V.  Rhode 406 

Remington    Paper    Co,  ».   O'- 

Douglierty 76 

Rhode,  Reis  v 406 

Rintoul,  White  « 259 

Rosa  V.  Wigg 263 

Ross  V.   Wigg  {note) , ,  268 

Rutty  V.  Person 25 

S 

Sanderson     Bros.    Steel    Co,, 

Sweet  V 69 

Schroeder,  Irr  e 253 

Bchultz,  Walsh  v 126 

Bcott,  Henderson  c 39 


Paga 

Soligman  v.  Wallach 'i'&l 

Simon,  Knapp  v 1 

Singer,  Estate  of 389 

Smith,  De  Viviert) 394 

Smith  B.  Fogarty 366 

Smith,  Laude  D 51 

Snififeo  t.  Peck 188 

Snyder,  Andrews  v 33S 

South    B'kl'n    Saw   Mill   Co., 

Dock» , 144 

Speelmnn,  McBlaine  « 401 

Spraguc,  Parsons  v 26 

Stagg,  Estate  of 88 

Stephenson  v.  Hanson 43 

Stern  v.  Moss 184 

Steitz,  Holmes,  Booth   &  Hay- 
den  V 362 

Straus  V.  Kreis. 77 

Strohn  v.  Epstein 36 

Swan,  Allen  v 56 

Sweet  V.  Sanderson  Bros.  Steel 

Co 69 

Syracuse  Savings  Bank  v.  Bur- 
ton    316 

T 

Tallman,  Pruden  v 860 

Taussig,   Davenport    Glucose 

Co.  V 152 

Taylor  v.  Meldrum ...    235 

Thomas  v.  Utica  &  Black  River 

R.  R.  Co 853 

Tilden,  Estate  of 15 

Til lotson,  Learned  v 225 

U 

U.  S.  Trust  Co.  V.  N.  Y.,  W. 

S.  &B.  R,  R,  Co 90 

V 

Van  Brunt,  Jenks  ® 158 

Viadero  v.  Morton 238 


TABLE  OF  CASES  EEPORTED. 


XVll 


W 

Page 

Wallach,  Seligman  t> 232 

Walsh  V.  Scliultz 126 

Westray,  Lippincott  v 74 

"White  V.  Rintoul 259 

Wigg,  Ross  V 263 

Wigg,  Boss  v.  (note) 268 

Willmoret;.  Flack 191 

Wilsoa  V.  Munoz ; 71 


Page 
Woerishoffer  v.    North  River 

Construction  Co 113 

Wood,  Anthony  v 164 

Wood,  Apsley  v.  .  ..    178 

Woodford  v.  Cliapman 315 

Woodford  V.  Rasback 315 

Y 

York,  Estate  of 845 


TABLE    OF    CASES    CITED 

m    THE    OPINIONS. 


A. 
Cases.  Where  Reported.  Page  Cited 

Alford  V.  Cobb 28  Hun,  22 271 

Allen  V.  Peters 4  Pliila.  78 441 

Ailing  t).  Fahey 70  N.  Y.  571 127 

Ansonia  Brass   &   Copper  Co.   v. 

Biibbitt 8  Hun^  157 176 

Ansonia   Brass  &   Copper   Co.   v. 

Babbitt 74  N.  Y.  395 176 

Ansonia    Brass  &  Copper    Co.   v. 

Connor 3  N.  Y.  Civ.  Pro.  88 175 

Anthornet).  Colt 2  Hall,  40 443 

Ashley  v.  Turner 22  Hun,  226 38 

Attorney     General     «.     Guardian 

Mut'I  Life  Ins.  Co 77  N.  Y.  272 109,  111,  113 

Attorney   General    v.   North  Am. 

Life  Ins.  Co 0  Abb.  N.  C.  293 113 

Attrill   V.   Rockaway  Beach  Imp. 

Co 25  Hun,  378 103,  112 

Averill  v.  Patterson 10  N.  Y.  500 306 

B. 

Baohelder  v.  Low 8  Nat'l  Bank'cy  Reg.  571 66 

Ballard  v.  Burrows 2  Robt.  206 352 

Bamberg  v.  Stern 76  N,  Y.  555 128 

BiiYivitv.  Selling 70  N.  Y.  492 231 

Barrett  v.  3d  Av.  R.  r!  Co 45  N.  Y.  628 321 

Barry  ©.  Bockover 6  Abb.  Pr.  374 376 

Bascy  V.  Gallaglier 20  Wall.  (U.  S.)  070 436 

Batlijjate  v.  Ilaskins 59  N.  Y.  533 296 

Baum  V.  Mullor 47  N.  Y.  579  ...    139 

Bean  v.  Tonneile 1  N.  Y.  Civ.  Pro.  33 269 

Beaver  v.  Taylor 1  Wall.  (U.  S.)  637     439 

Beeb«  v.  Elliott 4  Barb.  457 41 

fxviii] 


■TABLE    OF    CASES    CITED.  xix 

Cases.  Where  Reported.  P.ig''  Cited. 

Beers  v.  Hendrickson 45 N.  Y.,  6C5 321 

Heldou?).  N.  Y.  &  H.  R.  R.  Co..  15  How.  Pr.  17 350 

Itelmont  V,  Coraen 82  N.  Y.   256 220 

Iteiinett  V.  Edwards 27  Hun,  352 373 

HBerriet  v.  Steel 1  N.  Y.  Civ.  Pro.  579  note n2 

Beitles  ».  Nuuan 92  N.  Y.   152 140 

Bevan  c.  Cooper 72  N.  Y.  317 248 

Bidleson  v.  Whytel 8  Burr.  (Eng.  K,  B.)  1545 81 

Bigler  c.  Piriktiey .80  N.  Y.  636 ^36 

Bills  1).  Nat.  Park  Bank 89  N.  Y.  343 1«8 

Birdsall  v.  Patterson 51  N.  Y.  43 43» 

BlaisdtU  v.  Rnyraond.    3  Abb.  Pr.  144,  affd.  6  Id.  148. .   31 

Bootle  c.  Blundell 19  Ves.  Jr.   (Eng.  Chy.)  494. .   436 

Brazill   c.  Isham 1   E.   D.   Smith  437;   affd   12 

N.Y.  9 41 

■  Brinckerhoff  v.  Bostwick 88  N.  Y.  53 95 

"'  Brotherton  v.  Downey .31  Hun,  436 fi5 

Browner.  Volkening .64  N.  Y.  77 365 

j^  Buckley  o.  Gutta  Perclia  &  Rubber 

Co 3  N.  Y.  Civ;  Pro.  433 517 


Carr  v.  Van  Hoesen 36  Hun,  316 406 

Castle  1).  Lewis 78  N.  Y.  131. . . . ». 167 

Clmine  v.  Wilson 1  Bosw.  673 376 

Clmraberlaiu  ©,  Rochester  S.  P.  V. 

Co.  7  Hun,  557 x  346 

Champlin  v.  Stoddard. 17  N.  Y.  Weekly  Dig.  76 361 

Ciiapman  ©.O'Brien 39  N.  Y.   Super.  Ct.  244 381 

Church  V.  Gristgan 34  Wise.  328 413 

Clapp  0.  Broraaghana 9  Cow.  530 43 

Clapper  v.  Fitzpatrick 3  How.  Pr.  314;    S.  C,  1  Code 

R.  69 31 

Clarke.  Clark 11  Abb.  N.  C.  333 38 

Clark  «.  Ford    1  Abb.  Ct.  App.  Dec.  359 90 

Cleveland  v.  Barrows. . ; 59  Barb.  374 124 

Clock  V.  Chadeayne 10  Hun,  97 90 

Cobb®.  Knapp 71  N.  Y.  348 .8 

Cole®.  Jessup ID  N.  Y.  96 314 

Cole  B.  Terpenning 25  Hun,  483 87 

Coleman  v.  Burr 93  N.  Y.  17 140 

Coles  V.  Hannigan 8  Daly,  43... 185,  187 

Coliet5.  Tifft 4  N.  Y.   119 436 

Collins  ».  Campfield 9  How.  Pr.  519 370 


M  TABLE    OF    CASES    CITED. 

Cate8.  Where  Reported.  Page' Cited. 

Collins®.  Ryan 82  Bail).  047 370 

Concklinw.  Taylor 08  N.  Y,  221 320,  324 

Considcrant  v.  Brisbane 33  N.  Y.  389 14 

Cornelius  v.  Barton. 13  N.  Y.  Weekly  Dig.  216.430  434 

Corning  v.  Smith 6  N.  Y.  82 ,  . .; 341 

Cottreil,  in  r« 5  N.  Y.  Civ.  Pro.  340 133 

Coulter  «.  Murray 15  Abb.  N.  B.  129 411 

Cowing  z).  Altman '79  K  Y.  107    11 

Cox  ».  N.  Y.  C.  R.  R.  Co 63  N.  Y.  414 321 

Cudler  v.  Curry 44  IIow.  Pr.  349 . 244 

Currier  v.  N.  Y.,  W.  S.  &  B.  R.  R. 

Co Unreported JOS 

Cutler  V.  Wright 23  N;  Y;  473 277 

Darraw  v.  Lee 16  Abb.  Pr.  215^ 394 

Davidsbu'-g  v.  Knickerboaker  Life 

Ins.  Co 90  K  Y.  526 353 

Day  t).  Bach 87  N.  Y.  56 2T 

Decker  v.  Mattliews 12  N.  Y.  313 124 

Dickinson  v.  Mitchell 19  Abb.  Pr.  286 290 

Draper  v.  Crofts 15  Mees.  &  Wels.  (Eng.  Excr.) 

160. 443 

Duncan®.  Gue&t-. .....^N.  Y.  Civ.  Pro.  275 273 

E. 

Eagan  v.  Lynch 3  N.  Y.  Civ.  Pro.  236 50 

Eagle  Fire  Ins.  Co.  o.  Lent 6  Paige,  63<) 341 

Eagle  Iron  Works,  In  re 8  Paige,  385 340 

Earle  v.  Eurle ON.  Y.  Civ.  Pro.  171  note 171 

Ellison  V.  Bernstein 00  How.  Pr.  145 309 

Emigrant  Ind.  Suv.  Bank  v.  Gold^ 

man 75  N.  Y.  127 340,  305 

Erie  R.  R.  Co.  v.  Ramsey 45  N.  Y.  037 110 

Ewing  V.  Thompson 43  Pa.  St.  373 413 

F. 

Fairlie  v.  Denton 3  Carr  &  P.  (Eng.  N.  P.)   103.  443 

Featherstnne  B.  Cooke L.  R.  10  Eq.  298... 413 

Pelt  V.  Tiffany 11  Hun,  03 290 

Fenno  v.  Woston 31  Vt.  845 441 

Field  V.  Van  Cott 5  Daly,  308   240 

Piester®.  Shepard 92  N.  Y.  251 249 

Fitzgerald  v.  Quanu 1  N.  Y.  Civ.  Pro.  273 52,  143 


TABLE    OF    CASES    CITED.  xxi 

Cases.  Where  Reported.  Page  Cited. 

Pitzsimons  v.  Harrington 1  N.  Y.  Civ.  Pro.  360 52 

Florence  v.  Hopkins 4G  N.  Y.  182 43 

Foot  V.  Harris 2  Abb.  Pr.  454 370 

Pord«.  Babeock 2  Sand.  518 314 

Fowler  v.  Bailey. 3  Mass.  201 ;  314 

Fowler  ».  Hunt 10  Johns,  464 314 

Fraenznick  v.  Miller 1  Dem.  -136 246,  247 

Fraser,  Matter  of 92  N.  Y.  239 64 

Fredericks  v.  Taylor 14  Abb.  Pr.  N.  S.  77 31 

Ri:Bncli  MTg  Co.,  Matter  of 12  Hun,  448 ! 346 

Fritz  V.  Pultz 2N.  Y.  Civ.  Pro.  142 255,  257 

Frost®.  Koon 30  N.  Y.  428 341,  366 

G. 

Oasherie  v.  Apple 14  Ab.  Pr.  64 283 

Gaskill  v.-  Skene ^14  Adol.  &  E.,  N.  S.  (Eng.  Q. 

B.)  664 441 

Oeib».  Tc^pping 83  N.  Y.  46 420,  422,  424 

Geinp  v.  Pratt ;^7  Daly,  1-97 351 

Gillard  v.  Snaart 6  Cow.  385 321 

Goodrich  v.  Russell 42 N.  Y.  85 329 

Gordon  ».  Hartman 89  N..  Y..  221 202 

Gould  c.  Mortimer 26   How.    Pr.    107;   S,    C,    16 

Abb.  Pr.  448 94 

Gram  v.  Prussia,  &c.  Society 36  K  Y.  IGl 411 

Griffiths  V.  llardenbiirg 41  N.  Y.  464 381 

Griswold,  Matter  of r.  .13  Barb.  412 406 

Guilleaume  a.  Ro-we 4S  N.  Y.  Siipr.  Ct,  179 310,  213 

H. 

Hall  V.  Hall .81  K  Y.  180 329 

Hall  V.  U.  S.  Reflector  Co , .  .31  Hun,  609 97 

Hallenbeck  v.  Domiell 94  N.  Y.  342 99 

Hammond  v.  Earle .58  How.  Pr.  437 27 

Hampson  v.  Hatnpson 3  Ves.  &  Bea.  (Eng.  Chy.)  41.  ,436 

Harris  v.  Durkee 5  N.  Y.  Civ.  Pro.   376 280 

Hart  V.  Harvey 32  Barb.  55 410 

Hawes  v.  Oakland 104  U.  S.  450 95 

Hein  v.  Davidson 5  N.  Y.  Civ.  Pro.  391 382 

Hendricks  ?>.  Decker   35   Barb.  298 41 

Henry  v.  Salina  Btuik 1  N.  Y.  83;  S;  C,  3  Den.    593; 

1  How.  App.  Cas.  173 31 

Herring  v.  Hoppock 3  Duer.  20;  aff'd  15  N.  Y.  400.   381 

Heasburg  v.  Riley .5  N.  Y.  Civ,  Pre.    1G5 382 


xxii  TATTLE    OF-  CASES    CITEO.' 

Cases.  Where  Reported.  Page  Otted. 

Hill».  Pratt ...29  Vt.  119 443 

Hockley,  In  re 24  N.  Y.  74   31 

Hoffman  v.  Lachman 1  N.  Y.  Civ.  Pro.  278,  note  ...  53 

Holbrook  v.  Baker ...  16  Huu,  176 352 

Holcomb  «.  Holcomb. 2  Barb.  20  : , . .  865 

House  V.  Agate 3  Rcdf.  307 86 

Howell  «.  Mills. 53  N.  Y.  331 127. 

I. 

Ingersoll  ».  Mangam. . ; 84  N.  Y.  623 220 

J. 

Jackson  v.  Giiraan 2  Cow.  552. 279 

Jackson  v.  Livingston, 8  Johns.  149 279 

James  v.  Cowing 82  N.  Y.  449 325 

Janinski  v.  Heidelberg .21  Hun,  439. . 52 

Johnson  v.  Florence 32  How.  Pr.  230 187 

Johnson  v.  Jones 23  N.  J.  Eq,  216 411 

Jones  V.  Derby 1  Abb.  Pr.  458. 370 

Kamp  T.  Kamp 59  N.  Y.  212 97 

Keen  v.  Priest 1  Foster  &  Fin.(EQg.  N.  P.)  314.  440 

Kellett  V.  Rathbun 4  Paige.  103 19,  393 

Kerr  tJ.  Mount 28  N.  Y.  6.59 27 

Korr».  Trt-go 47  Pa.  St.  292 409,  412 

Knapp  V.  Roche  18  Weekly  Dig.  324 143. 

Kowiug  9.  Mauley 49  N.  Y.  192 5^ 

L. 

Lancfcrs  ».  8.  I.  R  R.  Co. 53  N.  Y.  450. 851,  352 

Lathrop  v.  Clapp 40  N.  Y.  33 2:53 

Lawrance  ».  Farley 73  N.  Y.  187 127,  128 

Lawrence  «.  Foxwell 4  N.  Y.  Civ.  Pro.  351 78 

Levy,  Matter  of 2  N.  Y.  Civ.  Pro.  108 376 

I^wis  V.  Smith 9  N.  Y.  502 -.'.or). 

Little  iJ.  Blunt 33  Mass.  359 3U 

Livermore  v.  Rhodes 27  How  Pr.  506 283, 

Lobdell  r.  Lobdell 36  N.  Y.  327 85 

I^er  V.  Hat6eld 71  N.  Y.  92...^ 90 

Loiillard  V   Clyde. SO  N.  Y.  384 275 

Luhr.s  ».  Elmers 85  N,  Y.  171 329 

Lutiieran  Ev.  Ch.  «.  GuTt2a«i 24  Wise.  328 400 

Lynch  v.  Clark. 1  Band.  Oh.  604 823 


'  TABLE    OF    CASES     CITED.  xxiii 

M. 

Cases.  Where  Reported.  Page  Cited. 

McCartee  v.  Camel 1  Barb.  Ch.  455 .  ! 89 

McConn  v.   N.   Y.  C.  &  H.  R.  R. 

Co    50N.'Y.  176 91 

McEleere  v.  Little 8  Daly,  167 127 

McGoldrick  v.  Willits 53  N.  Y.  G13 13 

McKyring  «.  Bull 16  N.  Y.  297 4X 

McLnclilin  v.  Brett 2  N.  Y.  Civ.  Pro.  194 ....  148 

Mf:\Ialioii  V.  Raulier » .  .47  N.  Y.  67 203 

McNoary  v.  Chase 30  Hun,  491 256,  257 

Mahoiiy  v.  Penman 4  Duer,  603 120 

Mnlcomb  «.  O'Reilly 89  N.  Y.  156 383 

Manning  v.  Gould 90  N.  Y.  476 230 

Marie  v.  Garrison 83  N.  Y.  28 125 

Marshall  c.  Knox 16  Wall.  (U.  S.)  551 176 

Marshall  v.  Meeeh 51  N.  Y.  140 320 

Marshall  v.  Mott  13  Johns.  433 270 

Marter.  Jure 8  K  B.  R.  188 176 

Martin  v.  Windsor  Hotel  Co 70  N.  Y.  101 296 

ilason  V.  Mursh 35  Barb.  68 i53 

Mayhew  w.  Robinson 10  How.  Pr.  163 353 

Mayor  ©.  Conover 5  Abb.  Pr.  171 411 

Mliohanics'   &   Traders'   Bank    v. 

llealy 14  K  Y.  Week.  Dig.  120 234 

Mequire  v.  Corwine 3  MacArthur  (D.  C.)  81 443 

"Mcreeins.  People 25  Wend.  64 300 

Mercliants'  Bank  of  Canada «.  Gris- 

woM    72  N.  Y.  474 276 

Meriain  v.  Harsen 4  Edw.  Ch.  70 ;  afTd  2  Barb.Ch. 

233 279 

Merritt  v.  Vegelius 28  Hun,  420 • 2% 

MicklesB.  Rochester  City  B'k...    11  Paige,  118 410 

Milne  v.  Lcisler 7  Hurl.  &  N.  (Eng.  Excr.)  780.  43U 

Moloney  v.  Dows 2  Hilt.  247 31 

Morris  «.  Whelan 11   Abb.   N.   C.  64;   S.  C,    64 

How.  Pr.  109 411 

Motr  ®.  Connally 50  Barb.  516 411 

Muser  v.  Miller 8  K  Y.  Civ.  Pro.  388 53 

N. 

K  Y.  &  E.  R.  R.  Co.  V.   Corey.  .5  How.  Pr.  177 303 

NichcWs  V.  Michael 23  N.  Y.  264 231 

North  Bap.  Church  «.  Parker 36  Barb.  171 410 

Northrup  «.Foot 14  Wend.  249 276 


xiiv  TABLE    OF    CASES     CITED. 

o. 

Cases.  Where  Reported.  Page  Cited. 

Olcott  V.  MacLean 73  N.  Y.  223 352 

Open  Board  of  Brokers,  In  re 3  N,  Y.  Monthly  Law.  Bui.  57.   346 

Ormes  v.  Dauchy 82  N.  Y.  443 275 

Orr  V.  McEwen 16  Hun,  625 371 

O'Shea  v.  Kohn 33  Hun,  114 78 

P. 

Paine  v.  McCarthy 1  Hun,  78 70 

Palmer  v.  Foley 44  How.  Pr.  308;  aflf'd  4  J.  &  S. 

14 ;  S.  C,  45  How.  Pr.  110. ...  411 

Patterson,  ]nre 1  Benedict  (U.  S.  Circ.)  307. , .   151 

Paulding  V.  Hudson  Man.  Co 2  E.  D.  Smith,  38 353 

Payne©.  Grant 23  Hun,  134 265 

People  p.  A.  &  S.  R.  R.  Co 57  N.  Y.  161 410 

People  V.  Conkling 5  Hun,  452 410 

People  V.  Cooper 1  Duer,  709 301 

People  V.  Cowls 59  How.  Pr.  287 301 

People  V.  Fredericks 48  Barb.  173;  aff'd  48  N.  Y.  70.   350 

People  ex  rel.  Ainslee  d.  Hewlett.  13  Hun,  138;  aff'd  76  N.  Y.  574 

292,  293 

People  D.  Humphreys 24  Barb.  5'?1 301 

People  ex  rel.  Woolf  v.  Jacobs. .  .66  K  Y.  8 252 

People  V.  Kelly 24  How.  Pr.  369 31 

People  t.  Lockwood 3  Hun,  304 443 

People  V.  Matier 2  Abb.  N.  S.  289 410 

People  V.  Mercein 8  Paige,  47 300 

People  V.  Norton 9  N.  Y.  178 243 

People  r.  Pendleton 64  N.  Y.  622 112 

People  ex  rel.  H.  R.  R.  R.  Co.  v. 

Pierce .' 31  Barb.  138 350 

People  V.  Sturtevant 9  N.  Y.  263 112 

People  ex  rel.  Ward  v.  Ward 59  How.  Pr.  174 301 

People  V.  Wilcox ...    22  Barb.  178,  194,  195   800 

Perkins  «.  Kendall 3  N.  Y.  Civ.  Pro.  240 38 

Perry  r.  Seward 6  Abb.  Pr.  327 112 

Phelps®.  Phelps 6  N.  Y.  Civ.  Pro.  117;  aff'd  32 

Hum,  642 280 

Phipps  V.  Carman 23  Hun,  150;  aff'd  84  N.  Y.  650 

419,  420,  421,  423 
Plicenix  Foundry  &  Machine  Co. 

V.  North  Uiver  Construction  Co. 8  N.  Y.  Civ.  Pro.  106.103,  106,  346 

Pliitt  V.  Towuseiid 3  Abb.  Pr.  9 190 

Poillcn  t>.  Lawrence 77  N.  Y.  207 66,  314 


TABLE    OF    CASES    CITED.  xxv 

Cases.  Where  Reported.  Page  Cited. 

Pomeroy  v.  Ainsworth 22  Barb.  118,  130 276 

Pond  t).  H.  R.  R.  Co 17  How.  Pr.  543 350 

Post®.  Doremus 60  N.  Y.  376 228,  239 

Potter  V.  Talltnan 35  Barb.  183 276 

Poucher  v.  Blauchard 8H  N.  Y.  263 212 

Pratt  «>.  Elkins..    .' 80  N.  Y.  198 73 

Pratt   M'f'g   Co.  v.   Jordan  Iron, 

&c.  Co 5  N.  Y.  Civ.  Pro.  373 55 

Purdy  ®.  Hayt 92  K  Y.  446 249 

Pyrolusite  Muuganese  Co.  in  r«,  .3  N.  Y.  Civ.  Pro.  270 347 

R. 

Randall  v.  Wilkins 4  Denio,  577 314 

Reims  v.  Astor  Fire  Ins.  Co .59  N.  Y.  148 Ill 

Rcunie  v.  Bean 24  Hun,  126 405 

Ridley  v.  Gade 9  Bing.  (Eng.  N.  P.)  349 440 

Rijj;gs».  Craig 89  N.  Y.  479 248 

Rinchey  v.  Strieker 28  N.  Y.  45 106 

Robertson  v.  Bullion? 11  N.  Y.  243 411 

Robinson  v.  Fitchburg  &  W.  R. 

R.  Co 7  Gray  (Mass.)  92 443 

Rochester  and  Genesee  Valley  R. 

R.  Co.  V.  Beckwith 10  How.  Pr.  168 303 

Rockford,  «&c.  ■».  Boody 56  N.  Y.  456,  460 273 

Roe  V.  Day 7  Carr.  &  P.  (Eng.  N.  P.)  698.  441 

Rogers  V.  Adriance 23  How.  Pr.  97 148 

Romaine  v.  Cornwell 11  Abb.  N.  S.  430 190 

Ross,  Matter  of 87  N.  Y.  514 435 

Rowe  V.  Smith 45  N.  Y.  233 139 

Ruger  V.  Belden 27  Hun,  405 296 

Rumsey  v.  Lake  55  How.  Pr.  339 53 

Ryan  B.Hardy 26  Hun,  176 271 

S. 

Schell  V.  Erie  Railway  Co 51  Barb.  368 110 

Schenck  v.  Fanchcr 14  How.  Pr.  95 306 

Schwartz  t).  Oppold 74  N.  Y.  307 127 

Scovill  V.  New 13  How.  Pr,  319 31 

Seacord  v.  Morgan 3  Keyes,  036 231 

Severn  v.  National  Bank  of  Troy.  18  Hun,  228. 65 

Seymour  v.  Minturn 17  Johns.  170 9 

Sherwood  v.  S.  &  W.  R.  R.  Co  . .  15  Barb.  052 350 

Smith  V.  Boyd 18  N.  Y.  Weekly  Dig.  461 405 


xxvi  TABLE    OF    CASES    CITED. 

Cases.  Where  Reported.  Page  Cited. 

Smith  V.  Eeal 46  L.  T.  Rep.  N.  S.  770 214 

Smith  V.  Mason 14  Wall.  (U.  S.)  419 . .  176 

Smith*.  White 7  Hill,  520 306 

Southwickp.  First  Niit'l  Bank...  84  N.  Y.  420 11 

Stiickhouse  v.  Freuch 1  Bi iig.   o65 50 

Stewart  v.   Eraersou 8  Benedict  (U.  S.  Circ.)  462.  .  150 

Stoddard  v.  Key 62  How.  Pr.  137 271 

Story  V.   Dayton 22  Hun,  450 3fll 

Sulliviin   «.  Fraser 4  Ilobt.  620 , 352 

Supervisors  Rensselaer  Co.».  Bales.  17  N.  Y.  245 243 

Sweet   V.  Tuttle 14  N.  Y.  465 352 

T. 

Talcott  V.  Harris 93  N.  Y.  567 443 

Tappan  v.  Gray .3  Edw.  Cli.  4.")2;  rev'd  9  Paige; 

507;  aff'd  7  Hill,  259 411 

Thomas  v.  Reab 6  Wend.  503 2!,6 

Thompson    v.  Kitchum 8  Term  R.  189 277 

Thorn<like  «.  City  of  Boston 1  Mctc.  (Mass.)  242 440 

Thorutou  V.  Thornton 66  How.  Pr.   119 420,  421 

Thttrber  v.  Blanck 50  N.  Y.  80 167 

TiMcn,  In  re 6  N.  Y.  Civ.  Pro.  15. 392 

Tillottson  V.  WolcGtt 48  N.  Y.  188 395 

Titus  e.  Relyea ,...    .16  How.  Pr.  371 119 

Towusend  v.  Hendricks 40'How.  Pr.  143 128 

Txaoy  ».  Stearns 12  N.  Y.  Weekly  Dig.  533 296 

Trebiiig  v.  Vetter 12  Abb.  N.  C.  303,  note 52 

Tioup  v.  Smith 20  Johns.  83  315 

Tucker  «.  Ladd 4  Cow.  47..   270 

Tucker  v.  McDermott 2  Redf.   313 393 

V. 

Vermilyea  v.  Palmer         52  N.  Y.  471 435,430,438 

Verplanck,  Matter  of 91  N.  Y.  439 247,  249 

W. 

"Wallace  e.  Castle 68  N.  Y.  870.' S76 

W^alsii  «.  Stearn 12  N.  Y.  Week.  Dig.  424 112 

Walters  v.  Shepherd 14  Hun,  223 419,  422 

Waring  v.  Chamberlain 14  Week.  Dig.  464 296 

Waring  v.  U.  S.  Tel.  Co 4  Daly,  233 443 

Warner  t?.  Kronkhite 13  Benedict  (U.  S.  C.  C.)  52. .   151 

Warren  v.  Paff 4  BraUf.  260 90 


TABLE    OF    GASES    CITED.  xxvii 

Cases.  Where  Eeported.  Pag©  Cited. 

Watt  T.  Starke 101  U.  S.  247 436 

Weetjeu  v.  Vibbard 5  Hun,  265 95 

Wehle  V.  Butler 61  N.  Y.  245 27 

Wehle  V.  Haviland 42  How.  Er.  393 ;  S,  C,  4  Daly, 

550 •. 27 

Welsh  «.  Cochran 63  N.  Y.  182 213 

Welsh  V.  Hill... 2  Johns.  373 270 

Wertheim  v.  Continental  Railway 

Co 3N.  Y.  Civ.  Pro.  371 363 

West  Side  Bank  v.  Pugsley 47  N.  Y.  368 395 

Western  T.  &  C.   Co.   v.  Kilder- 

house 87  N.  Y.  430  275 

Wheeler  v.  Dixon 14  How.  Pr.  151^ 31 

Wheeler's  Case 50  N.  Y.  667 218 

Wheelock  ^.  Lee 74  N.  Y.  497 352 

Whitehouse,  Inre 4  Benedict  (U.  S.  C.  C.)  63. . .  151. 

Whitney  v.  N.  Y.  &  Atlantic  R.  R 

Co SKY.  Civ.  Pro.  118.. 101 

Wilcox  V.  Wilcox 14  K  Y.  575 300- 

Wilkinson  v.    North.  River  Con- 
struction Co 66  How.  Pr.  423 103,  109,  112 

Williams  v.  Kiernan 25  Hun,  358 244. 

Williams  v.  Preston 47  K  T.  Rep.  N.  S.  265 214 

Williams  v.  Waddell 5  N.  \  Civ.  Pro.  191 286 

Woerishoffer  v.  North  River  Con- 
struction Co 6  N.  Y.  Civ.  Pro.  113 103 

Wood  V.  Erie  R.  R.  Co 72  N.  Y.  176,  200 276 

Wyman  v.  Mitchell , 1  Cow.  316 81 

T. 

Yates  V.  Lansing , 9  Johns.  416 50 

Yates  V.  North 44  N.  Y.  271 368 

Young  V.  Rummell 2  Hill,  478 41 

Z. 

ZimmermaQ  v.  Erhardt 83  N.  Y.  74 271 


STATUTES,    ETC.,    CITED. 


SECTIONS  OF  THE  CODE  OF  CIVIL  PKOCEDURE 

CITED. 


tectioi 

I 

Page 

Section 

?«We 

8 

. 

.  252 

508   . 

•       •       • 

.  269 

11 

. 

252 

610 

•       •       '• 

.  112 

190 

.    . 

120 

035   . 

•       •       • 

.   81 

241 

,    , 

298 

630 

•       •       « 

.  271 

841 

^    • 

351 

630,  SL 

ibd. 

2 

.  370 

388 

,   , 

86 

648   . 

• 

.  168 

896 

.    , 

86 

649 

•    .    • 

167,  168 

401 

, 

.  313 

683   . 

•    •    . 

.  209 

424 

,    , 

120 

719   . 

•    •    • 

271,  273 

487 

,   , 

»370 

723 

•    .    • 

•.  298 

438 

,    •   , 

218,  221 

730   . 

.    .    • 

.  269 

439 

•    •   > 

119,  219 

769   . 

96,  103,  108, 

111,  113 

449 

,    , 

.  244 

811 

•    •    • 

.  170 

450 

, 

.    52, 

63,  142 

828 

. 

.   64 

454 

,    , 

.  240 

829  . 

64 

237»  238 

478 

,    , 

.   71 

837   . 

.    .    • 

.   31 

484, 

subd. 6 

.  124 

844 

119. 

270,  271,  ' 

i77, 

488 

,    , 

.  852 

378,  279, 

284,  286 

498 

•       •       a 

.  852 

854-857 

.    • 

.  252 

500 

•      •       • 

41,  290 

867-869 

. 

.  303 

501 

,       , 

.  290 

868  . 

•    •    • 

362,  363 

607 

,       , 

.  352 

869   . 

•    •    • 

.  303 

633 

,       , 

81,  32 

972   . 

•    •    • 

487,  438 

624 

,       , 

.   55 

977 

•    •    . 

.   83 

520 

.       , 

.    81, 

82,  33 

1003   . 

.    .    . 

437.  438 

649 

, 

151,  186 

1019   . 

.   419,  420, 

422,  423 

649, 

subd.  4 

■    77, 

78,  180 

1023   . 

.    •    • 

.  325 

650 

. 

180,  271 

1206 

•    •    • 

.   53 

550, 

subd. 2 

.  270 

1207   . 

.    .    . 

.  160 

653 

.    , 

, 

49 

1216 

•    •    • 

.  871 

[xxviU] 


STATUTES,  ETC.,  CITED. 


XXIX 


Section 

Page 

Section 

Page 

1225   .....  438 

2464   ....   37,  395 

12G0   . 

.  821 

2481   . 

.  391 

12G8   . 

.  149 

2481,  subd,  6 

.   17 

1304   . 

.  187 

2481,  subd.  7 

.  253 

1326   . 

.  171 

2615   . 

.  828 

1337   . 

.  435 

2620   . 

.  133 

1353   . 

.  262 

2723   . 

.   86 

1399   . 

.  187 

2743   . 

.  246 

1421   . 

380,  381 

2750  . 

.   63 

1424   , 

.  380 

2876   . 

.  255 

1632   . 

.  365 

3894  . 

.  186 

1695,  subd.  ( 

.  254 

2901   . 

.  256 

1699   . 

.  254 

2902   . 

.  256 

1784  . 

.   '  .   99 

2904   . 

.  186 

1785'  . 

.   99 

2916   . 

.  256 

1788   . 

.   99 

2917   . 

.  256 

1793  . 

.   99 

2920  . 

.  254 

1806  . 

.  110 

3025   . 

.  256 

1810  . 

98,  99,.  115 

2933   . 

.  256 

1819  . 

.   87 

3003   . 

.  252 

1903  . 

.  223,  354 

3015   . 

.   60 

1903  . 

.  355 

3018   . 

•.  187 

1904   . 

.  223,  224 

3048,  subd.  S 

.'  336 

1933   . 

.   38 

3049  •  . 

.  336 

1934   . 

.   38 

3174'  . 

.  360 

1948-1956  . 

.  410 

3191   . 

.  126,  128 

1984   . 

.  410 

3209   . 

.  186 

1991   . 

.  298 

3210   . 

.  186 

1992   . 

.  29S 

3211   . 

.  186 

2019   . 

.  301 

3247   . 

.   80 

2129   . 

.    .  298 

3351   . 

.  334 

2140   . 

.  2'.>8 

3353   . 

.  22 

3,  334,  325 

2285   . 

50,  351,  252 

3256   . 

.  333 

2426   . 

.  347 

3268   . 

15 

7,  375,  376 

2429   . 

99,  345 

3269   . 

.  157 

2435   . 

.  233 

3278   . 

375,  376 

2436   . 

.  233 

3347,  subd .  6 

.  391 

2441   . 

.  393 

3347,  subd.  11 

.  391 

2444   . 

.   362,  363 

Cluip.  15,  Tit.  4,  Art.  1  (§§  1871, 

2446   . 

.  395 

1879)    ....   38 

2447   . 

.  395 

Chap.  18  (§§  2472,  2860)   .  891 

2460   . 

.  234 

Cliap.  19,  Tit.  2,  Art.  3  (§§  2894, 

2461   . 

.   88 

2904) 

.  186 

laa. 


STATUTES,  ETC.,  CITE©. 


SECTIONS  OF  THE  CODE  OF  PROCEDURE  CITED. 

120 240 

149 41 

179  . 1£6 

373  . .419,  420,  422 


SESSION  LAWS  CITED. 


'Xaws  of  1829, 

*'  1839, 

"  1845, 

"  1845, 

"  1847, 

^*  1847, 

"  1847, 

"  1848, 

"  1849, 

"  1850, 

«*  1853, 

"  1854, 

*'  1857, 

*'  1857, 

«'  1858, 

♦*  1800, 

«'  1860, 

"  1860, 

♦«  1860, 

*'  1800, 

"  1860, 

««  1802," 

«♦  1802, 

"  1863, 

*'^  1867, 

♦•  1869, 

"  1870, 

•'  1874, 

«•  1874, 

"  1875, 

«♦  1875, 


chap. 


222. 

205. 

109. 

115  §4 

170. 

280  §  16 

280  §  16, 

195. 

347. 

270. 

138. 

200. 

346  §  10 

346  §  16, 

259. 

90. 

90  §2 

90  §7 

90  §  8 
348. 

348  §§  1,  2 
172. 
172  §  3 
248. 
557. 
133. 
208. 
201. 
545. 

38. 
136. 


subd. 


subd. 


21 


5,6, 


28 


. 

27^ 

, 

278 

. 

278 

. 

329 

. 

278 

. 

SCO 

. 

301 

278, 

284, 

285 

271, 

275, 

276 
278 
241 
284 
186 
185 
278 
139 

140, 

141 

53, 

141 
141 

404, 

4v. 
404 
139 
53 
278 

119 

284, 

285 
119 

276 

J,  279, 

284 
329 
202 
329 

278, 

283 

STATUTES,  ETC.,  CITED. 


XXXI 


f  1877, 

chap 

.  417. 

. 

.283,  801 

1877, 

(< 

417  §  1,  subd.-3  (G) 

.  119 

1877, 

(( 

417  §  1,  su 

bd.  4  (43) 

.  119 

1877, 

(( 

466. 

.  404 

1877, 

(( 

4G6  §§  1,  2 

.  404 

1879, 

(( 

543. 

.   ..  151 

1880, 

(( 

245. 

.   53 

1881, 

(( 

486. 

.  262 

1881, 

(( 

486  §  1 

.  170,  171 

1881, 

(( 

488  §2 

.  171 

1881, 

(( 

486  §8 

171,  172,  173 

1883, 

<( 

14  §1 

.   31 

1883, 

((  ' 

281. 

270,  275,  276 

1883, 

<( 

378. 

97,  99,  115,  116 

1883, 

<( 

378  §  1 

96, 

100,  101,  104 

1883, 

<( 

378  §  8 

.  103 

1883, 

(1 

378  §5 

.  103 

1883, 

(( 

378  §  7 

.   93 

1883, 

(< 

378  §  8 

.  101 

1883, 

(( 

410  §  1386  . 

.  187 

NEW  TORK  REVISED  STATUTES   CITED. 


FIRST  EDITION. 


1  R.  S.  757. 
1  R.  S.  824. 
1  R.  S.  861. 
1  R.  8.  935. 

1  R.  S.  946. 

2  R.  S.  95  §  71 


283 
2G8 
29  3 
298 
298 
247, 


2  R.  8.  148  §  12 
2  R.  S.  174. 

2  R.  8.  362  §  24 

3  R.  8.  396  §  2o 
2  R.  S.  933. 


.  300 
.  81 
.  321 
119,  283 
.  298 


8  R.  8.  253. 


THIRD  EDITION. 


275 


8  R.  S.  102  §  70. 

8  R.  8.  104 

8  R.  S.  199  §  102 


SIXTH  EDITION. 


•  ••••• 

•  ••••• 

•  •  .  •         '  •  .•  '        '• 


18 
247 
865 


xxxii  STATUTES,  ET(^,  CITED. 


SEVKNTH  EDITION. 


8  R.  S.  2170  .  .  .329 
3  R.  S.  2215  .  .  .  304 
8  R.  S.  2224    .  278,  283,  284 


3  R.  S.  2230    .    .    .283 
3  R.  S.  2551  §  16  .    .    .308 


GENERAL  EULES  OF  PRACTICE  CITED. 

Rule  25  (1877,  1880,  1883) 269 

Rule  37  (1877,  1880,  1883) .191 


CONSTITUTION  OF  THE  STATE  OF  NEW  YORK 

CITED. 

Art.  1,  §  6 81 

Art.  6,  §  15 851 


U.  S.  REVISED  STATUTES  CITED. 

§5024 .176 

§5117 150 


I  TEXT-BOOKS,  ETC.,  CITED. 

2  Blackstone's  Commentaries,  201 828 

8  Blackstoue's  Commentaries,  159 81 

Commissioncr'a  Note  to  Code  of  Civil  Procedure,  §  817  (now 

§  844) 277,  278 

Commissioner's  Note  to  Code  of  Civil  Procedure,  §  1906    .         .  53 

Daniel's  Chancery  Practice,  1146 436 

Daytqu's  Surrogate's  Practice  (3  Ed.)  506,  507  .        .      19,    22,  893 


STATUTES,  ETC.,  CITED. 


XXXlll 


Dayton's  Surrogate's  Practice  (3  Ed.)  543  .        •        ,        .        .  23 

1  Duer's  Practice,  106,  313,  313 270 

1  Greenleaf  on  Evidence,  §  186 176 

2  High  on  Injunctions,  §  315  .«••••.  409 
Keiley  on  Assignments,  118-121        ..••..  405 

2  Kent's  Commentaries,  53 328 

Lieber's  Hermeneutics  (3  Ed.)  285  note      .....  813 

McAdam  on  Landlord  &  Tenant,  422 293 

2  Parsons  on  Contracts,  583 276 

1  Phillips  on  Evidence,  524  (marg.  p.) 176 

2  Phillips  on  Evidence,  Cowen,  Hill  &  Edwards'  Notes,  929  .  31 
Revisers'  Note  to  Code  of  Civil  Procedure,  §  817  (now  §  844)  277,  278 
Revisers'  Note  to  Code  of  Civil  Procedure,  §  1906      ...  53 

Story  on  Conflict  of  Laws,  §  282 276 

Story's  Equity  Jurisprudence,  §  891 110^ 

Taylor  on  Evidence,  §  585.  .        ,        ,        .        ,        .        .439 

Throop's  Code,  note  to  §  844 277 

Throop's  Code,  note  to  §  2464 895 

Wait  on  Fraudulent  Conveyances,  §86^^,^»  •  •  .  167 
Wood  on  Landlord  &  Tenant,  873     •       •       •       •  ^    •       .893 


Xttvi  STATUTES,  ETC.,  CITED. 


SECTIONS  OF  CODE  OF  CIVIL  PKOCEDTTRE 

CONSTEDIED  OB    CiTED,  IN   THE  OPIinONS   CONTAINED  IN  THE 

FOLLOWING  Reports,  issued  during  the  Period  Covered 
BY  THIS  YoLUME  :  Now  York  Reports,  Yols.  95,  06 ;  Hnu's 
Reports,  Vols.  32,  33  ;  Abbott's  New  Cases,  Vol.  14  ;  How- 
ard's Prac.  Reports,  Vol.  67;  N.  Y.  Superior  Court  Reports, 
Vol.  50  ;  Deinarest's  Reports,  Vol.  2 ;  N.  Y;  Civil  Pro. 
Reports,  Vol.  6. 

2    Eisner  «.  Avery 2Dem.  466. 

8    In  re  Jones 6  N.  Y.  Civ.  Pro.  250. 

11    In  re  Jones. C  N.  Y.  Civ.  Pro.  250. 

14     Stephenson  v.  Hanson 6  N.  Y.  Civ.  Pro.  43. 

14    In  re  Jones 6  N.  Y.  Civ.  Pro.  250. 

17    Chatfield  v.  Hewlitt .". , .  2.Dem.  191. 

33    Brooks  v.  Mexican  Constr.  Co 50  Super.  285. 

55    Gearon  v.  Bank  for  Savings 6  N.  Y.  Civ.  Pro.  207. 

66     Smith  t.  Baum 67  How.  Pr.  267. 

66     Eisner®.  Avery 2  Dein.  466. 

147    Roach  v.  Odell. 33  Him,  320. 

263    Brooks  v.  Mexican  Nat'I.  Constr.  Co 50  Super.  287. 

267    Brooks  ®.  Mexican  Nat'I.  Constr.  Co 50  Super.  287. 

341  Heenan  v.  N.  Y.,  W.  S.  &  B.  R.  R.  Co.  6  N.  Y.  Civ,  Pro.  348. 

375     Howell  v.  Leavitt 95  N.  Y.  617. 

380     People  ex  rel.  Townsliend  «.  Cady. 50  Super.  402. 

882    Knapp  v.  Simon 6  N.  Y.  Civ.  Pro.  1. 

886     Kydd  v.  Dalrymple 2  Dem.  630. 

888    Estate  of  Stagg 6  N.  Y.  Civ.  Pro.  88. 

388    Estate  of  Collins 6  N.  Y.  Civ.  Pro.  85. 

388     Higgins  v.  Higgins 14  Abb.  N.  C.  22. 

388     Syms  v.  Tlie  Mayor,  «fec 50  Super.  294. 

895  Cotter  v.  Quinlan 2  Dem.  29. 

395     Kydd  v,  Dalyrmple 2  Dem.  630. 

896  Estate  of  Collins 6  N.  Y.  Civ.  Pro.  85. 

401     Engle  v.  Fischer 6  N.  Y.  Civ.  Pro.  307. 

403    Cotter  «.  Quinlan 2  Dem.  29. 

406    Mead  v.  Jenkins 95  N.  Y.  81. 

416     People  ex  rel.  Field  v.  NatU  Pacific  R.  R. 

Co 50  Super  458 

419    Sweet  t>.  Sanderson  Bros.  Steel  Co 6  N.  Y.  Civ.  Pro.  8t. 


"  statutes;  ET0.5  CITED.  xxxvil 

'^l  C6le  V.  McGarvey 6  K  Y.  Civ.  Pro.  305. 

433  Sweet  v.  Sanderson  Bros.  Steel  Co, -6  N.  Y.  Civ.  Pro.  69. 

'424  Plieips  «.  Phelps 6  N.  Y.  Wv.  Pro.  117. 

485  Smith  «.  Fogarty . . .   6  N.  Y.  Civ.  Pro.  8GG. 

<436  Smith  «.~  Fogarty '6  N,  Y.  Civ,  Pro.  3fi6. 

-437  Smith  v.  Fogarty <j  N.  Y.  Civ.  Pro,  366.  '• 

438  Syracuse  Savings  Baivk  v.  Bilrtoa 6  N.  Y.  CiV.  Pro.  216. 

'438  Place «.  Riley   33  Hun,  17. 

439  Piie-lps  V.  Phelps «  N.  Y.  Civ.  Pro.  1 17. 

•' 4a9  SyracuseSavings  Bawk  v.  Burton ^6  N.  Y.  Civ.  Pro.  216. 

•  447  Kecier  v.  McNeirney 6  K  Y.  Civ.  Pro.  363. 

448  Spies  v.  Roberts 5D  Super.  305. 

449  Viadero  o.  Morton 6  N.  Y.  €i v.  Pi-p.  238. 

i'450  Laade  v.  Smith t>  N.  Y.  Civ.  Pro.  51. 

450  Muser  v.  -Lewis '  6  N.  Y.  Civ.  Pro.  135, 

•450  Mapes  v.  Brown 14  Abb.  N.  C.  94. 

MoO  Fitzgerald  v.  ,Quann ^3  Hun,  652. 

452  Tildea  v.  Dows 2  Dem.  489! 

-454  Viadero  v.  Morton 6  N.  Y.  Civ.  Pro.  338, 

468-477     Matter  of  Watson 2Dera.642. 

472  Cole  V.  McGarvey 6  N.  Y.  Civ.  Pro.  305. 

•479  Sweet  ©,  Sandersoa  Bros.  Steel  Go 6  N.  Y.  Civ.  Pro.  69. 

481  Sprague  v.  Parsons "  6  N.  Y.  Civ.  Pro.  26. 

4«4  De  Silver©.  Holden 6  N.  Y.  Civ.  Pro.  121. 

>484  Teal  v.  O'lty  of  Syracuse 82  Hun,  332. 

'488  Heenaty  v.  N.  Y.  V.  S.  &  B.  R.  R.  Co. .   6  N.  Y.  Civ.  Pro.  348. 

488  Taylor  v.  Metropolitan  El.  R.  R.  Co 50  Super.   340. 

-490  Beriiey  «.  Drexell 32  Hun,  419. 

498  Taylor  v.  Metropolitan  El.  R.  R.  Co 50  Super.  340. 

-  499  Heooan  v.  N.  Y.,  W.  S.  &  B.  R.  R.  Co. .   6  N.  Y.  Civ.  Pro.  318. 

:-499  Taylor  c.  Metropolitan  El.  R.  R.  Co 50  Super.  340. 

500  Henderson  v.  Scott 6  N.  Y.  Civ.  Pro.  39. 

600  Lidgerwood  MTg  Co.  v.  Baird 6  N.  Y.  Civ.  Pro.  54. 

500  Barnes  o.  Gilmore 6  N.  Y.  Crv.  Pro.  286. 

500  Potter  v.  Frail 67  How.  Pr.  445. 

500  Spies  V.  Roberts 50  Super.  305. 

500  ^Hoffman  n.  N.  Y.,  &c.  R.  R.  Go 50  Super.  405. 

'SOO  Thierry  c.  Crawford "83  Hun,  366. 

501  Barnes  v.  Gilmore 6  N.  Y.  Civ.  Pro.  286. 

503  Hetbert  »./Day 33  Hun,  461. 

519  Spies  V.  Roberts 50  Super.  305. 

533  Spies  v.  Roberts, 50  Super.  305. 

533-520    Moorehousg  v.  Hutchinson. 2  Dem.  439. 

533  Frist  v.  Climm 6  N.  Y.  Civ.  Pro.  30. 

>  «a3  Anderson  v.  Dotj 33  Huu,  238. 


xxxviii  STATUTES,  ETC.,  CITED. 

524    Liflgcrwood  MTg  Co.  v.  Btiird G  N.  Y.  Civ.  Pro.  54. 

528  Phelps  V.  Phelps  ...    G  N.  Y.  Civ.  Pro.  117. 

529  Frist  B    Climm 6  N.  Y.  Civ.  Pio,  30. 

531  Olden  Gemnuiia  v.  Dcvcndev Q  N.Y.  Civ.  Pro.  161. 

531  Siiiffen  v.  Peck  ...    6  N.  Y.  Civ.  Pro.  188. 

531  Hayes  v.  Davidson G  N.  Y.  Civ.  Pro.  330, 

531  Fiely  v.  MiinhaUai)  11.  Co G N.  Y.  Civ.  Pro.  414. 

539  Kn.ipp  V.  Simon , ft N.  Y.  Civ.  Pro.  J. 

539  Davis  w.  Bowe 50  Super.  801. 

539  Spies  ».  Roberts ^ 50  Super.   30o, 

540  Kiiapp  7J.  Sitnon 6  N.  Y.  Civ.    Pro.    1. 

540     Davis  p.   Bowe 50  Su|)er.   301. 

540  Spies  «.  Roberts 50  Super.  305. 

641     Knapp  v.  Simon 0  N.  Y.  Civ.  Pro,  1, 

541  Davis  ».  Bowe 50  Siiper.   305. 

540     Straus  v.  Kreis G  N.  Y.  Ci  v.  Pro.  77. 

549     Stern  v.  Moss ft N.  Y.  Civ.  Pi o.  ] 84. 

549  Ryle  ©.  Brown 50  Super.   175. 

549,  subd.  1.     Kaufmnn  v.  Lindwer ftN.  Y.  Civ.  Pio.  148, 

550  Stern  «.  Moss G  N.  Y.  Civ.  Pro.  184. 

550     Ross  V.   Wigg 6N.  Y.  Civ.  Pro.  2()3,  208. 

550,  subd.  1.     Lippman  v.  Siuipiro 50  SujK'r.   870. 

559     O'Siiea  ».  Kohn 33  Hun,  114. 

i02  et  acq.     Phceoi.x    Foundry,    &c.      Co.    v. 

Nortii  River  Construction  Co 6  N.  Y.  Civ.  Pro.  100. 

603  et  seq.     Reis  v.  Rhode G  N.  Y.  Ci  v.  Pro.  406. 

635     Remington  Paper  Co.  v.  O'Dongherty. . .   G  N.  Y,  Civ.  Pro.  79. 

635  et  seq.     McBlane  d.  bpeelman 6  N.  Y.  Civ.  Pro.  403. 

6:^0     Ross®.  Wigg 6N.  Y.Civ.  Pro.  2G3,  208. 

G3G     Sniitii  v.  Fogarty 6  N.  Y.  Civ.  Ppd.  3G6. 

030     MeKiiihiy  v.   Fowler G7  How.  Pr.  388. 

036     Smith  r.  Arnold 33  Hun,  484. 

640     Spragnc  ».  Parsons 6  N.  Y.  Civ.  Pro.  26. 

648     Anthony  v.  W..od 6  N.  Y.  Civ.  Pro.  1G4. 

649,  G50.  ■   Anthony  v.  Wood.  .  .6  N.  Y.  Civ.  Pro.  1G4-,  90  N.Y.  180. 

6"»r)     Davidson  v.  Ciiatl)!ini  Nat'I  Bank 32  Hun,  138. 

675     Davidson  t).  Cljaihiim  Nat'I  Bank   32  Hun,  138. 

682     McBhine  v.  Speelman 6  N.  Y.  Civ.  Pro  401. 

719     Ross  t).  Wigg 6  N.  Y.  Civ.  Pro.  2G3,  2G8. 

723    People*^  re/.  Herkimer  &  Moliawk  R,  R. 

».  Assessors  of  Herkimer G  N.  Y.  Civ.  Pro.  297. 

723     Mapcs  v.  Brown   14  Ahb.  N.  C.  94. 

723  Spies  t.  Roberts 50  Super.  305. 

724  Gade  »,  Gade 14  Abb.  N,  C.  511. 

727     Mapasr.  Brown 14  Abb.  N.  C.  04. 


STATUTES,  ETC..  CITED.  xxxix 

788  Garrison  v.  Garrison 67  How.  Pr.  271. 

755  Dock  V.  South  Brooklyn  Saw  Mill  Co.  .ON.  Y.  Civ.  Pro.  Ui. 

756  Dock  V.  South  Brooklyn  Saw  Mill  Co. . .   ON.  Y.  Civ.  Pro.  144. 
.756  Tilden  ».  Dows 2  Dem.  489. 

757  Dock  ».  South  Brooklyn' Saw  Mill  Co. . .   ON.  Y.  CJiv.  Pro.  144. 
.768  People  v.  City  Bank 90  N.  Y.  32. 

769  Plieenix  Foundry  &   Mnciiine   Co.   c. 

North  liiv^r  Construction  Co G  N.  Y.  Civ.  Pro.  106. 

7«9  U.  S.  Trust  Co.c.  N.  Y.,  W.  S.  ■&  B. . .  . 

R'y  Co 6  N.  Y.  Ci V.  Pio.  90. 

-776  Apslcy  v.  Wood 6  N.  Y.  Civ.  Pro.  178. 

7.79  Scotield  ».  Adriawce 2  Dem.  486. 

781  Sniffcu  v.  Peck.". 6  N.  Y.  Ci^r.  Pro.  188. 

JSS  Sniffcn  v.  Peck: 6  N.  Y.  Civ.  Pro.  188. 

JTSS  Gadu».  Gade :.14  Abb.  N.  C.  oU. 

.788  Matter  of  Cariiart 2  Deni.  G27. 

.791  McArthur  t!.  Commercial  Fire  las.  Co...   67  Uow.  I'r.  .IIGL 

7'93  McArtliur  v.  Commercial _Fire, Ins.  Co...   67  How.  Pt.  .010. 

-803,  et  seq.  Meliesy  ».  Kahu 6  N.  Y.  Civ.  Pro.  33. 

"fill  McGean  «.  MacKellar 6  N.  Y.  Civ.  I  ro.  WJ. 

mi  Earle  t?.  Eurle     6  N.  Y.  Civ.  Pto.  171. 

€12  Siepheusou  «.  Hanson C  N.  Y.  Civ.  Pro.   i3. 

^812  Hurd  ».  Hannibal ,&  St.  Jo.. R.E ^3  Hun,  109;  S.  C,  6 

Civ.  Pro.  aS6. 

=823  Carroll  ».. Dei mel .05  N.  Y.  2o2. 

■.«27  Apsley  v.  \V«o.l 6  N.  Y.  Civ.  Pro.  178. 

«28  Wilson  «.  Munoz .-6  N.  Y.  Civ.  Pro.  71. 

»828  EstateofLe  Baron 6  N.  Y.  Civ.  Pro.  62. 

823  Nenman  ».  Third  Ave.  R.  R  Co 50  Super.  415. 

829  Wilson  ».  Munoz ON.  Y.  Civ.  Pro.  71. 

.^29  Estatcof  Le  Baron Q  N.  Y.  Civ.  Pro.  6^. 

-829  Taylor  ».  Meldrum ' 6  N.  Y.  Ci v.  Pro,  235. 

.829  Stephens  ».  Cornell 32  Hun,  414. 

829  Sanford  ».  Ellithorph 95  N.  Y.  48. 

--829  Holcomb  e.  Holcomb 95  N.  Y.  316. 

829  Lane®.  Lane 95  N.  Y.  494. 

829  Will  of  Smith 95  N.  Y.  517. 

829  Poucher  ».  Sccrtt , 33  Hun,  223. 

829  Price-©.  Price 33  Hun,  69. 

829  Kelly  c.  Burroughs 33  Hun,  319. 

829  Gillies  v.  Kreuder 33  Hun,  314. 

■:837  Davenport  Glucose  Co.  ®.  Taussig 6  N.  Y.  Civ.  Pro.  158. 

844  Phelps  ».  Phelps 6  N.  Y.  Civ.  Pro.  117. 

844  Ross  V.  Wigg .6  N.  Y.  Civ.  Pro.  26:3,  268. 

-.867  .Pmdcn,  »,  TuUmau . , ,6  N.  .Y.  Civ.,  Pro..  iHQ. 


%L  STATUTES,- ETGv,  CXTEK-. 

867  Holmes  n.  Stieta 6  K  Y.  Civ.  Pro.  36% 

868  Piuden  v.  Tallraan 6N.  Y.  Civ.  Pro.  36a 

868  Holmes  v.  Stietz. 6  N.  Y-  Civ,  Pro.  362. 

869  Pruden  ».  Tallmaiv 6  J*-.  Y.  Civ.  Pro.  360.- 

869  Holmes  «.  Stietz. • 6  K  Y.  Civ.  Pro.  362. 

870,  et  &J5'.  Davenport  Glucose  Co.-©.  Tilussig  6  N.  Y.  Civ.  Pro.  ISSu 

870  Duncnu  ».  Jones 32  Hun,  12. 

872  Cadmus  v..  Oakley 2  Dem.  298. 

885^.  ReylBolds*.  Piirkes........ 2  Dem.  399. 

887  Cadmus  ».  Oakley 2  Dem.  fi98. 

88a>   Cadmus  'th.  Oakley i  Dl-ui.  298.- 

910  Hedges  «.  Williams 33  Hun,  546. 

956.  Peo{)le-'».  D'Argciicom-  95  N.  Y.  624.  . 

t>a7.  People  V.  D'Argencour 95  N.  Y.  624. 

J«8  Reopie  v.  D^Argeaoour 95  N.  Y.  624. 

968  Cojuell  v.  Cornell , 96  iSf.  Y.  108;  • 

971),  971,  972     LLurned  v.  Tillotsou 6  N.  Y.  Civ.  Pro.  425.'. 

971.  Carroll  v.  Diiuxel 95  N.  Y.  252. 

977  Haberstieh  v.  Fischer. 6  N.  Y.  Civ.  Pro.  82i. 

QS2  Goj-mun  v.  South  Bostoa  Irott.Co 32.Hun,  71. 

982:  Ackci-  p.  Lelaiul 06  K.  Y.  383. 

983  Gorman  t).  South  Boston  Iron,  Co 32  Ilun^  71. 

984  Gorman  v.  South  Boston  Iron  Co.^ 32. Hun,  7L 

987  Gorman  ».  Sou-th  Bot^tMi  Inwi  Co. 32  Hun,  71. 

987  Acker  v.  Leland 96  N- Y.  383.. 

993  Goettling  J),  Biehltr (>JSf.  Y.  Giv.  Pro.  324*.. 

997  Ja  re  N.  Y.,  W.  S.  &  B.  R.  R.Co.  ta-ac. 

q»iire  lands  of  Judsoa. 6  N.  Y.  Civ.  Pro.  303^ 

998  Matter  of  Jackson 32  Hik),  2li0i 

999  Emmerich  ».    Heffcrnan... 33  Hun,  51. 

1003  Carroll  ©.  Deimel 95  N.  Y.  252. 

1003  Leurued  v.  Tiliotson   ft N.  Y,  Civ.  Pro.  425.. 

i013  Adaius  v.  City  of  Ulica ON.  Y.  Civ.  Pro.  294. 

1019  Little  V.  Lynch. 6JS.  Y.  Civ.  Prj.  418,, 

1023  Gocttling  v.  Biehler 6  X.  Y.  Civ.  Pro.  3  J4.. 

1023  Diekel  ».  Yates *. 2  Dem.  229. 

1023  Harris  v.  Van  Wart. 96  N.  Y.  642. 

1200  Laude».  Smith &N.  Y.  Civ.  Pro.  51j 

1207  Jeuks  V.  Van  Brunt '. 6  N.  Y.  Civ.  Pro.  158. 

1207  Spies  «.  liuberts 50  Sujier.  301. 

1216  Smith  «.  Fogarty 6- N.  Y.  Civ.  Fro.  366, 

liGU  Woodford  p.  llashack 6  N.  Y.  Civ.  Pro.  315.' 

1266  Woodford  v.  Ciiapmau 6  N.  Y.  Civ.  Pro.  315.. 

1268  Kaufman  v.  Lindner 6  N.  Y.  Civ.  Pro.  148,. 

12.73  Bluouuidd  v.  Ketcham 95  N.  Y.  6i7.  . 


1S90    Marshall  ».  McGec 33  Hun,  354. 

1301     Reese  v.  Smith 95  N.  Y  645, 

1313    Hills  V.  Peoples  Savings  Bank. 95.N.  Yv  GT5.  - 

1316     De  Silver®.  Holden 6  N.  Y.  Civ.  Pro.  121;- 

1316     Reese  v.  Smitli 95  N.-  Y.  645, 

1318     Palmer  v.  Vernon 67  How.  Pr.  18. 

1326     McGeaa  v.  MacKellar 6  N.  Y.  Civ.  Pro.  169u 

1336  Earle  ®.  Earle 6K  Y.  Civ.  Pro.  171.. 

1326,  et  scj.Hurd  v.  Hannibal  i&  St.  Joseph  R, 

R.  Co 6 N.  Y.  Civ.  Pro.  386., 

1828     Goodwin  «.  Bunzl 6  N.  Y.  Civ.  Pro,  336,- 

1^29     Goodwin  v  Bunzl: 6  N.  Y.  Civ.  Pro.  338. 

1334  Kurd  v.  Hunnibal&St.  Joseph  R:R.  Co.  6  N.  Y.  Civ.  Pro.  386. 

1335  Goodwin  v.  Bunzl. 6  N.  Y.  Civ.  Pro.  326.^ 

1337  '  Learned  v.  TUlotson 6  N.  Y.  Civ.  Pro.  425- 

1343     Lippjncott  v.  Westray 6  N.  T.  Civ-  Pro.  74. . 

1853    White  v.  Rintoul 6K  Y.  Civ.  Pro.  359^. 

1357     Harris  v.  Supervisor  Niagara  Co 33  Hun,  379. 

1566     Ansonia  Brass,  &c.  Co,  v.  Conner 6  N.  Y,  Civ,  Pro,  173- 

1370     Place  v.  Riley 33  Hun,  17, 

1431-1435     Hayes  v.  Davidson. 6  N.  Y.  Civ.  Pro.  377. . 

1421-1425     Hein  ».  Davidson. 96  N.  -Y,  175 ;  5  Civ.  Pro.  391. 

1498     Kent  v.  Popi)am.. 6  N.  Y.  Civ.  Pro.  336..> 

1498     Keeler  v.  McNeirney 6  N.  Y.  Civ.  Pro.  363. 

1515     Henderson  ».  Scott 6  K  Y.  Civ.  Pro.  39.. 

1535     Cadetou  »,  The  Mayor,  «&&... 50  Super.  183. 

1531     Henderson  v.  Scott 6  N.  Y.  Civ.  Pro.  89., 

1539     Mapes  «.  Brown 14  Abb.  N.  C.  94. 

1633     Kent  «.  Pop!  1  am 6  N.  Y.  Civ.  Pro.  336^.. 

1605     Err  ».  Schrocdur , 6  N.  Y.  Civ.  Pro.  353.  . 

1695     Amfirican  Tool  Co.  v.  Smith,  i 32  Hun,  121. 

1699    Err  v.  Scliroeder 6  N.  Y.  Civ.  Pro.  253,  - 

1708    People  ex  rel.  Field  ».  Nat'l  PacifioiR. 

R.  Co 50  Super.  45a 

1772,  1773     Ryer  ».  Ryer 33  Hun,  116. 

1780     Toronto  Trust  Co.  v.  Chicago  B.  &  Q., 

R.  R 33  Hun,  190. 

1780    Brooks  v.  Mexican  Constr.  Co 50  Super.  387.- 

1783     Langdon  v.  Fogg 14  Abb.  K  C.  ^Se.""- 

1809    Phoenix  Foundry,    &c.  Co.  ly.  North 

River  Construction  Co 6^N.  Y.  Civ.  Pro.  106:  - 

1809    Woerishoffer  v.  North  River  Construc- 
tion Co 6N.  Y.  Civ.  Pro.  118*. 

1«09.   Hewlett  V.  West  Shore,  &c.  R.  R. 14  Abb.  N.  C.  328.- 


xKi  STATUTES,  ETC.,  CITE©. 

1816    Pheeiiix  Foundry,   &c,    Co.  «.  North 

River  Construction  Co 6  N.  ¥.  Civ.  Pro.  106. 

1810    U.  S.  Trust  Co.  v.  N.  Y.,  W.  S.  &  B. 

R'y  Co 6  N.  Y.  Civ.  Pro.  99. 

4810  Woerislioffer  v.  Noi-th  River  Construc- 
tion Co €  N.  Y.  Civ.  Pro.  113. 

1810     111  re  BoyntoQ  8:iw  &  File -Co. 6  N.  Y.  Civ.  Pro.  343. 

4819    EsUte  ..f -Collins. . , 6  N.  Y.  Civ.  Pro.  85. 

d835     Joel  V.  Ritterman 2  Dem.  242. 

1835-1827     Peyser  v.  Wendt ,2  Dem.  221. 

J830     Peters  v.  Carr 2  Dem.  22. 

1820     Sippel  V.  Maoklia 2  Dem.  219. 

4833     Smith  v.  Colhimer 2  Dem.  147. 

4835,  1830     Miller  v.  Miller 67  How.  Pr.  135. 

1835,  1836     Wilkinson  v.  Littlewood 67  How.  Pr.  474. 

4865     Colligan  v.  McKernan 2  Dem.  421. 

1903  Tiiomas  v.  Utica&  Black  River  R.  R.  Co.  0  N.  Y.  Civ.  Pro.  35S. 
d903     Thomas  ®.,Utica  &  Black  River  R.  R.  Co.  6  N.  Y.  Civ.  Pro.  353. 

1904  Boyd  v.  N.  Y.  C.^  H.  R.  R.  R.  Co. . . .  6  N.  Y.  Civ.  Pro.  222. 
1919     Duncan  v.  Jones , .     32  Huo,  .12. 

1932     Garrison.©.  Garrison 07  How.  Pr.  271. 

1948,  et  seq.     Reis  v.  Rhode «  N.  Y.  Civ. -Pro.  406. 

4953    People  ex  rd.  Deane  o.   Supervisors   of 

Greene 14  Abb.  N.  C.  31. 

>1991     People  «a;  ,reZ.    Ilerkimer  &  Mohawk  R. 

R.  V.  Assessors  of  Herkimer 6  N.  Y.  Civ.  Pro.  297. 

•1993    People  «c  rd.   Herkimer  &  Mohawk  R. 

R.  V.  Assessors  of  Herkimer 6  N.  Y.  Civ.  Pro.  297. 

S015,  et  »eq.     Peo|>le  ex  rd.  Hoyle  v.  Osborne.  6  N.  .Y.  Civ.  Pro.  .299. 

:2015     III  re  Larson 90  N.  Y.  381. 

2019    People  ej;  reZ.  Hoyla©.  Osborne 0  N.  Y.  Civ.  Pro.  290. 

.2058    lH.re  Larson 96  N.  Y.  381. 

2120-2123     People  «r  rcZ.  North  Tarrytowa  v. 

Cobb 14  Abb.  N.C  498. 

3129     People  ex  rel.  Herkimer  «fc  Mohawk  R. 

R.  Co.  V.  Assessors  of  Herkimer. . 6  N.  Y.  Civ.  Pro.  297. 

2141     Peoplo-ga;  rel.  Emmett  ». . Caof pbell 56  Super.  91.  V 

2269     Naylor  c.  Naylor 32  Huo,  238.  { 

2273     Naylor  v.  Naylor 33  Hun^  33«. 

2384     Brettc.  Brett 33  Hun,  547. 

2285  Stephenson  v.  Haneoo 6  N.  Y.  Civ.  Pro.  43. 

2286  Ryer  v.  Ryer 83  Hun,  110. 

2360     McNulty  t).  Solley 95  N.  Y.  242. 

24U),  et  seq.     In  re  E.  M.  BoyntonSaw  iSn  File 

JDo ...^ ,. 6N.  Y.  Civ.Pro.  342. 


STATUTES,  ETC.,  CITEI>.  xlii: 

2432,  et  seq.     Pruden  v'.  Tallman 6  K  T.  Civ.  Pro.  360. 

2432,  et  seq.     Holmes  v.  Stietz 6  N.  Y.  Civ.  Pro.  362. 

2433     Lippincott  v.  Westray 6  N.  Y.  Civ.  Pro.  74. 

2435  Seligman  v.  Wallach 6  N.  Y.  Civ.  Pro.  233. 

2436  •  Seligman  v.  WuUach ftN.  Y.  Civ.  Pro.  232. 

2444     Hoimc-s  «.  Stietz 6  N.  Y.  Civ.  Pro.  362. 

24()4     Strohn  v.  Epstein.    6-N.  Y.  Civ.  Pro.  3^. 

2464    De  Vivier  v.  Smith 6  N.  Y.  Civ.  Pro.  394. 

2:472     IVfcxtter  of  Lynch 67  How.  Pr.  436i ' 

2472,  siibds.  3^^  and-  6.     Jones  v.  Hxjopen 2  Dem.  14. 

2476     Evans  «.  Schoonraaker  2  Dem.  249, 

2476,  snbd.  3.     White  v.  Nelson 2  Dem.  265. 

2481     Matterof  Lynch   67  How.  Pr.  43ft. 

2481 ,  sul)ds.  5,  1 1.     Wolfe  v.  Lyncb> 3  Dem.  610. 

2481,  subd.  6.     Estate  of  Tilden 6  N.  Y.  Civ.  Pro.  15. 

2481,  subd.  a.     Estate  of  Singer 6  N.  Y.  Civ.  Pro.  380. 

2481,  subd.  6.     Crosaman  v.  Crossman 2  Dem.  60. 

2481,  subd.  11.     Hoes  v.  Halsey 2  Dem.  577, 

2484  People  ex  rel  Oakley  v.  Petty 32  Hnn,  443. 

2485  People  ex  rel.  Oakley  ».  Petty 32  Hnn,  443. 

2486  Matter  of  Chauncey 32  Hun,  429. 

2509,  subd.  2     Maunui  v.  Ilawley 2  Dem.  396. 

2514,  subds.  3,  11.     Creamer  v.  Waller 2  Dem.  351. 

2517     Fountain  ».  Carter 2  Dem.  313. 

2520     Mauran  e.  Hawley 2  Dem.  396. 

2520     Matter  of  Carhart 2  Dem.  627. 

2527  Estate  of  Tilden 6  N.  Y.  Civ.  Pro.  15. 

2527  Matter  of  Watson 2  Dem.  642. 

2530  Matter  of  Watson 2  Dem.  642. 

2533  Tliompson  «.  Mott 2  Dem.  154. 

2534  Moorhouse  v.  Hutchinson ' 2  Dem.  429. 

2537  Matter  of  Mno<ly 2  Dem.  624. 

2545  Matter  of  Will  of  Smith 95  N.  Y.  517. 

2545  Dicktl  v.  Yates 2  Dem.  229. 

2545  Waldo  v.  Waldo 32  Hun,  251. 

2545  ]\I:itter  of  Ciiauncey 32  Ilun,  429. 

2554  Joel  v.  Ritterraan 2  Dem.  242. 

2554  Bingham  t).  Bui lingame 33  Hun,  211. 

2r)57  Beekman  v.  Beekman 2  Dem.  635. 

2558  Matter  of  Budlong 33  Hun,  235. 

2587  Fret  man  v.  Coit 96  N.  Y.  63. 

2593  Cutlibert  v.  Jacobson 2  Dem.  134. 

2597  Bick  v.  Murphy 2  Dem.  251. 

2597  Stevens  v.  Stevens 2  Dem.  469. 

2000  Shook  V.  Goddard 2  Dem.  201. 


^Hv  STATtTTES,  ETC.,  CITED. 

•S600  Bicfc  T>.  Murpliy 3  Dera.  951. 

2G0G  Murray  c.  Viinderpoel 2  Dem.  311. 

"2606  Maze  v.  Brown 2 'Dura.  217. 

«006  Bunnell  ».  Rrtntiey. .    2  Dem.  327. 

2806  Scofix?rd  «.  Adrianee 2  Dem.  486. 

2006  Matter  of  Latz 3aHuu,  618. 

•2()11  Estate  of  Bo<?ert 6  N.  Y.-Civ.  Pro..l38. 

CO  14  Grossman  v.  Grossman 2  Detn.  G9. 

2614  Cix)ssman  v.  Grossmau -...,- 95  N.  Y.  145. 

2615  //irrfPowers «  N.  Y.  Civ.  Pro.  SSC 

"2615  Dycrr.  E'ving ,   2 'Dem.  160. 

2617  Dyer  v.  Erving v2  Dem.  160. 

2617  '  Hummersiey  c.  Locktnan —   2  Dem.  524. 

2618  Estate  of  Bogert 6  N.  Y.  Giv.  Pro.  128. 

«618  Matter  of  Huyt -  67  How.  Pr.  W. 

2018  Conselyea  T.  Walker 2  Dem.  117. 

2618  Hoyt?j.  Jackson 2  Dem/443. 

2618-2620    ■Gh-aber  v.  Haaz 2  Dem.  216. 

2620  Rolla  v.  Wright 2  Dem.  482. 

2621  Golligan  v.  McKernan ■ 2^>Dem.  421. 

r  2623  Estate  of  Bogert 6  N.  Y.  Giv.  Pro.  138. 

2624  Tiers  v.  Tiers 2  Demu-  209. 

2643  Matter  of  Alien 2  Dom.  203. 

2647,  et  seq.     Matter  of  Will  of-Gouraud 05  N.  Y.  256. 

2647  Grossman  v.  T^rossman 2  Dem.  69. 

2647  Hoyt  v.  Jackson 2  Dem.  443. 

!J848  Fountain  ??.  Carter 2  Dem.  313. 

2661  Moorhrrase  ».  Hutchinson 2  Dem.  429. 

.2668  Matter  of  Chase 32  Hun,  3'18. 

2672  Kruse  T).  Fricke ,. 3  Dem.  264. 

.  2683  Berdell  v.  SchcM 2  Dem.  292. 

2685  Atkinson  TJ.  Striker 2  Dem.  361. 

2085,  f>abd.  2.     Hood  v.  Hood 2  Dem.  583. 

.2685,  subd.  5.     Grubl)  v.  HamiltOR 2  Dem.  444. 

2686  JFoorhDUse  v.  Hutchinson 2  Dem.  429, 

;2695  nendri(k«on  v.  Ladd 2  Dem.  403. 

26!)9  Enins  r.  Sfhoonmaker 2  Dem.  349. 

2706  Mead  v.  Sommcrs 2  Dem.  206. 

2706  Maurau  v.  H;wley 2  Dera.  396. 

2706  Renk  v.  Herrmnn  Lodge 2  Dem.  409. 

2708  Mauran  v.  Hnwley 2  Dem.  396. 

2715  Creamer  t>.  Waller 3  Dera.  351. 

2717,  subd.  2.     Atkinson  v.  Striker 2  Dem.  201. 

.  2717-2719     Peyser  «.  Wendt 2  Dem.  221. 

-2718  Cuthbert  c- Jacobsoa 3  Dtm.  134. 


'STATUTES,  ETC.,  CITED.  yitr 

3723    Estate  of  Collins 6  N.  T.  Civ.  Pro.  85. 

.2723    Estate  of  Stagg 6  N.  Y.  Civ.Pro.  88. 

2723,  subd.  1.     Peters  v.  Carr 2  Dem.  .22. 

2724    Cuthbert  v.  Jacobson 2  Dem.  134. 

2726  Schkgel  v.  Winckel 2  Dem.  232. 

2727  Schlegel  ©.  Winckel 2  Dem.  232. 

37-29  .  Schlegel  v.  Winckel 2  Dem.  232. 

2735  Cuthbert  v.  Jacobson ; 2  Dem.  134. 

2736  Slosson  v.  Naylor 2  Dem.  267. 

2736    Waters  v.  Faber 2  Dem.  ^90. 

2739     Snyder  v.  Snyder 96  N.  Y.  88;  5  Civ.  Pro.  267. 

3743  Estate  of  York 6  N.  Y.  Civ.  Pro.  245. 

2743  Gibbons  v.  Slieppard. 2%Dem. .  247. 

3743  Tilden  v.  Dows 2  Dem.  489. 

2746  Matter  of  Moody 2  Dem.  624. 

2750  Estate  of  Le  Baron , -6  N.  Y,  Civ.  Pro.  63. 

2793,   subd,  5.      Smith??.   Meakin 2  Dem.  129. 

3811  Slosson  v.  Naylor 2  Dem.  257. 

2812,  2813     Gladding  ».  Follett 2  Dem.  58. 

2832  Led wiUi  v.  Union  Trust  Co 2  Dem.  439. 

-2838  Griffin  v.  Sarsfield 2  Dem.,4. 

-2842  Ledwith  v.  Union  Trust  Co 2  Dem.  439. 

/.2845  Ledwith  v.  Union  Trust  Co 2  Dem.  439. 

.2846,  2847     Welch  v.  Gallagher 2  Dem.  40. 

.  2847-2850     Smith  v.  Lusk 2  Dem.  595. 

2851  Griffin  «.  Sai-siSeld.. 2  Dem.  4. 

:2876  Irr  v.  Schroeder 6  N.  Y.  Civ.  Pro.  253. 

,2894-2904     Stern  «.  Moss 6  K  Y.  Civ.  Pro.  182. 

.i.2901  Irr  v.  Schroeder 6  N.  Y.  Civ.  Pro.  253. 

:2902  Irr  v.  Schroeder 6  N.  Y.  Civ.  Pro.  253. 

.2916  Irr  v.  Schroeder -6  N.  Y.  Ci v.  Pro.  253. 

3917  Irr  v.  Scliroeder 6  N.  Y;  Civ.  Pro.  253. 

,3920  Irr  v.  Schroeder 6  N.  Y.  Civ.  Pro.  253. 

.2925  Irr  v.  Scliroeder - 6  N.  Y.  Civ.  Pro.  253. 

.3933  Irr  v.  Schroeder : 6  N.  Y.  Civ.  Pro.  253. 

2966  Xiivingston  v.  Morrissey 6  N.  Y.  Civ.  Pro.  28. 

-3016  Allen  v.   Swan 6  N.  Y.  Civ.  Pro.  56. 

3044  Commissioners, of  Jamaica  o.  Allen. ....    32  Hun,  61. 

-3044,  3045     People  v.  Norton   33  Hun,  277. 

-.3046  Andrews  v.  Snyder 6  N.  Y.  Civ.  Pro.  333. 

.3048  Andrews  v.  Snyder 6  N.  Y.  Civ.  Pro.  333. 

3049  Zabriskie  v.  Wilder 14  Abb.  N.  C.  325. 

^063  Irr  v.  Schroeder 6  N.  Y.  Civ.  Pro.  253. 

3070  Allen  v.   Swan 6  N.  Y.  Civ.  Pro.  56. 

•  3174  Oakes  v.  Harway 6  N.  Y.  Civ.  Pro.  357. 


xlvi  STATUTES,  ETC.,  CITED-. 

8191  Walsh  V.  Schulz 6  N.  T.  Cir.  Pro.  12». 

3191  Willmore  v.  Flack 6.  N  Y.  Oiv.  Pro.  191. 

8209,  3210,  3211     Stern  v.^  Moss 6  N.  Y.  Civ.  Pro.  182. 

8245  Dressell  v.  City  of  Kingston 82  Hun,  526. 

3246  Miller  v.  Miller 32  Hun,  481* 

3246  MeGovern  v.  McGovern :. .     50  Super.  895. 

3247  Remington  Paper  Co.  v.  O'Dougherty. . .   6  N.  Y.  Civ.  Pro.  79. 
3247  Slauson  v.  "Watkins 95  N.  Y.  369. 

3251     Woodford  v.  Rasback 6  N.  Y.  Civ.  Pro.  315. 

8251     Woodford  v.  Chapman 6  N.  Y.  Civ.  Pro,  315. 

3251,     subd.  3    Studwell «.  Baxter 33  Hun,  331. 

3253    Rutty  v.  Person 6  N.  Y.  Civ.  Pro.  25. 

3253    Boyd  v.  N.  Y.  C.  &  H.  R.  R.  R.-  Co 6  N.  Y.  Civ.  Pro.  224. 

3268    Fitzsimmons  «.  Curley 6  N.  Y.  Civ.  Pro.  156. 

3268    Krom  v.  Kursheedt 6N.  Y.  Civ.  Pro.  371. 

8269     Fitzsimmons  v.  Curley 6  N.  Y.  Civ.  Pro.  156. 

3271     MoGovern  v.  McGovern.    50  Super.  393. 

3278    Krom  v.  Kursheedt 6  N.  Y.  Civ.  Pro.  371. 

8297    Race  ».  Gilbert 32  Hun,  360. 

3334    People  v.  City  Bank 96  N.  Y.  32. 

3343,    subd.  2    Mauran  v.  Hawley. 2  Dem.  396. 

Ch.  18,  tit.  3,  art.  5   Jones  v.  Hammersley . . . .  2  Dem.  286. 

Ch.  18,  tit.  8,  art.  7   Hendrickson  r.  Ladd 2  Dem.  402. 

Ch.  18,  tit.  5    Hendrickson  «.  Ladd 2  Dem.  402. 

Ch.  18,  tit.  5    Wolfe  Lynch 2  Dem.  610. 

Ch.  18,  tit.  6    GladdiDg  v.  Follett 2  Dem.  58.  j 


Civil  Procedure  Reports. 


KNAPP,  Appellant,  v.  SIMON,  Impleaded,  etc., 
Respondent. 

Court  of  Appeals,  1884. 

§§  382,  539-541. 

Broker. — Effect  of  concealment  hy,  of  the  name  of  his  principal. — Bights 
and  liabilities  of. — Pleading. —  When  court  of  appeals  will  consider 
a  case  upon  the  cause  of  action  disclosed  hy  the  evidence  rather 
tfian  on  that  set  up  in  the  pleadings. — Duty  of  court  to  give 
party  benefit  of  aiuse  of  action  established  by  the  evi- 
dence notwithstanding  insufficiency  of  pleadings. 
— Statute  of  limitations. — Ap2)lication  of, 
to  brokers  contract. 

An  agent  who  purchases  property  without  disclosing  tho  name  of  his 
principal  to  t!ie  vendor,  at  the  time  of  the  purchase,  renders  iiimself 
personally  liable  to  tlie  vendor  for  the  purchase  price, [',  *]  and  this 
is  the  only  consequence  of  the  omission. [''j  Tlie  vendor,  upon  dis- 
covering the  name  of  the  principal  in  the  transaction,  may  also  ho4d 
him  responsible  for  the  price  of  the  property  bought,  provided  he 
has  not  meanwhile  in  good  faith  paid  such  priee  to  the  agent,  and 
the  vendor  may  pursue  either  the  agent  or  principal  or  both,  until 
he  recovers  the  contract  price. [2,  •*] 

When  a  broker  purchases  or  sells  property  without  disclosing  to  the 
respective  principals  in  the  transaction  the  name  of  the  party  for 
■whom  he  acts,  be  becomes  personally  liable  for  the  purchase  price 
Vol.  VI.— 1 


CIVIL    PROCEDURE    REPORTS. 


Kiiapp  V.  Simon. 


and  is  entitled  to  collect  it  from  tlie  vendee, [*J  who  can  relieve 
himself  from  liability  to  the  broker  by  showing  that  he  has  paid 
the  contract  price  to  the  original  vendor  or  that  he  has  been  re- 
leased for  a  good  and  valuable  consideration  by  the  broker^']  A 
cause  of  action  having  once  accrued  to  the  broker,  and  becoming 
vested  in  him,  can  be  discharged  only  by  payment  or  release.  ['] 

Where  a  complaint  did  not,  in  terms,  set  forth  all  of  the  facts  neces- 
sary to  support  a  cause  of  action  sustained  by  evidence  adniittt-d  on 
the  trial  without  objection,  and  no  question  w:is  at  any  time  raised 
as  to  the  sufficiency  of  the  complaint  to  sustain  the  cause  of  action 
proved, — Held,  that  the  court  of  api)eals,  on  appeal,  would  (•on>ider 
the  case  upon  the  cause  of  action  disclosed  by  tlx;  evidence  and  dis- 
regard any  objections  to  the  sufficiency  of  the  pleadings  not  niadfl 
in  the  court  below  ;[*]  that  it  was  the  duty  of  the  court  below  in  the 
absence  of  any  objection  to  the  sufficiency  of  the  complaint  to  give 
the  plaintiff  the  benefit  of  any  cause  of  action  established  by  the 
evidence  and  a  refusal  by  it  to  direct  llie  jury  to  find  in  accordance 
with  the  case  made  by  such  evidence  would  be  error.[*j 

Where  a  broker  purchased  wheat  for  a  certain  firm  without  disclosing 
his  principal,  and  subsequently,  upon  being  sued  by  the  vendor, 
paid  the  balance  of  the  purchase  price  then  unpaid,  and  thereafter 
brought  an  action  to  recover  the  same  from  his  prinoi|>jils, — HeUL, 
that  it  was  error  for  the  court  to  charge  the  jury  in  such  action  that 
if  "  the  plaintiff  acted  as  principal  and  made  a  sale  of  this  wheat 
to  the  defendants,  the  plaintiff  cannot  recover,"  and  the  judgment 
sliould  therefore  be  reversed ;['■•]  that  the  plaintiff's  liability  could 
not  be  affected  by  the  character  in  which  the  plaintiff  acted  in 
making  the  purchase  of  the  wheat, ['"J  and  it  was  entirely  immate- 
rial that  for  certain  purposes  he  might  be  regarded  by  certain  par- 
ties as  a  principal  in  the  transaction ;["]  that  so  far  as  the  defendants 
were  concerned  he  was  a  person  who  had  incurred  a  liability  for 
their  benefit  and  from  which  it  was  their  duty  to  relieve  him;["'] 
also  Held,  that  the  defendants  were  undoubtedly  entitled  to  invoke 
the  benefit  of  the  statute  of  limitations  as  a  .bar  to  any  cause  of 
action  he  might  have  against  them  and  this  bar  would  enure  to 
them  in  regard  to  any  liability  growing  out  of  the  original  trans- 
action irrespective  of  the  character  in  which  the  plaintiff  acted  at 
the  time ;[•'']  that  the  statute  «>f  limitation  would  have  been  equally 
a  bar  to  any  action  brought  by  him  with  respect  to  tiie  original 
transaction  whether  he  claimed  as  vendor  of  the  wheat  or  as  a  broker 
entitled  to  enforce  the  contract  of  pale  as  the  trustee  of  an  cxpreM 
trust.  [»»] 

{Decided  June  10,  1864.) 


CIVIL    PROCEDURE    REPORTS. 


Kuapp  c.  Simon. 


Appeal  by  plaintiff  from  a  Judgment  and  order  of 
the  general  term  of  the  N.  Y.  superior  court,  affirming 
a  judgment  of  the  trial  term  of  the  same  court  in  favor 
of  the  defendant.  I 

This  action  was  brought  by  the  plaintiff  to  recover 
i|6498.36,  the  value  of  certain  wheat  alleged  to  have 
been  purchased  of  one  Carlos  Cobb  for  defendants  by 
phdn tiff  as  their  broker,  and  for  which  Cobb  had  re- 
covered a  certain  Judgment  against  XJlfiintiff,  on  the 
ground  that  he  had  failed  to  disclose  to  Cobb,  the 
defendants  as  his  principals,  and  the  costs  of  defend- 
ing the  action  in  which  the  Judgment  was  recovered.   , 

The  complaint  alleges  that  the  defendants  were^ 
during  October,  1868,  copartners  in  business,  under  the 
firm  name  of  C.  A.  Steen  &  Go.  ;  that  the  plaintiff  was 
a  broker  in  grains ;  that  on  October  23,  1868,  the  de- 
fendants requested  the  plaintiff,  as  their  broker,  to 
purchase  of  Carlos  Cobb  3,026x*o\  bushels  of  wheat  for 
.the  sura  (with  towage)  of  ^.5,054.95  ;  that  the  plaintiff, 
as  broker,  did  buy  the  wheat,  which  was  delivered  to 
defendants  ;  that  the  principal  and  interest  of  this 
sum  on  October  28,  1868,  amounted  to  ^425.40,  on 
which  day  defendants  paid  $1,688.32,  leaving  unpaid 
$3,737.08,  which  defendants  never  paid  ;  that  said  Cobb 
sued  the  plaintiff  for  the  unpaid  balance  in  the  N.  Y. 
superior  court,  and  on  April  21,  1876,  recovered  a 
judgment  against  him  for  the  sum  of  $5,564.39,  which 
was  affirmed  by  the  general  term  January  8, 1877,  with 
$106.60  costs,  which  last  judgment  was  on  appeal  to 
the  court  of  appeals  affirmed  December  22,  1877,  with 
$145.34  costs  (see  42  i\^.  Y.  Super.  CL  [10  J.  &  S.]  91 ; 
71  N.  Y.  348),  that  said  Cobb  died  pending  the  appeal, 
and  Emmeline  F.  Cobb,  his  administratrix,  was  sub- 
stituted as  plaintiff  in  his  place,  and  he  was  compelled 
to  and  did  pay  her  the  sum  of  $6,498.36,  the  amount 
of  the  several  judgments,  no  part  of  which  has  been 


CIVIL    PROCEDURE    REPORTS. 


Kiiapp  V.  Simon. 


repaid  him  ;  tliat  said  judgments  were  recovered 
against  him,  although  the  defendants  in  this  action 
were  the  i)rincii)als  in  the  transaction,  and  the  plaintiu 
a  mere  brokei-,  under  allegations  and  proof  that  plaint- 
iff failed  to  disclose  his  principals. 

Among  other  defenses  set  up  by  the  defendant  were 
allegations  that  the  claim  in  suit  had  been  released, 
and  that  it  was  barred  by  the  Statute  of  Limitations. 

On  a  first  trial  the  defendant  had  ir  judgment  in  his 
favor,  which  the  coyirt  of  appeals,  on  appeal,  reversed 
(86  N.  Y.  311). 

On  the  second  trial  the  defendant  was  again  suc- 
cessful and  the  general  term  affirmed  the  judgment 
entered  by  him. 

From  the  judgment  and  order  of  affirmance  entered 
on  the  decision  of  the  general  term  this  appeal  was 
taken. 

Further  facts  appear  in  the  opinion. 

D.  31.  Porter,  for  appellant.- 

The  assumption  and  agreement  to  pay  the  debt  of 
the  plaintiff  to  Cobb  at  the  time  of  the  settlement 
between  plaintiff'  and  defendants  ....  would  make 
it  a  matter  of  indifference  what  the  original  transaction 
was,  because,  as  between,  the  plaintiff  and  defendants, 
he,  plaintiff,  became  and  was  the  surety  and  defend- 
ants the  principals,  although  as  to  Cobb  the  plaintiff 
still  remained  a  principal  becauseCobb  was  not  a  i)arry 
to  this  agreement.     Slauson  v.  Wat  kins.  80  JV.  Y.  597  ; 

Comstock  V.  Drohan,  71  Jd.  9  :  S.  C,  8  Ilun,  373 

The  law  implii-'s  a  request  if  the  surety  is  compelled  to 
pay.  Neass  v.  Mercer.  15  Barb.  318 ;  Bradsiiaw  r. 
Beard,  12  C.  B.  N.  S.  344;  Doty  r.  Wilson,  14  ./ohvs. 
378;  Van  Santen  v.  Standard  bil  Co.,  81  N.  Y.  171  ; 
Exall  V.  Partridge,  8  7\  R.  308;  Bailey  t?.  Bussing,  28 
Conn.  455  ;  Norton  v.  Coons,  3  Denio,  130;  S.  C,  (5  i\'. 
Y.  33.  .  .  .  "In  order  to  prevent  injustice,    the  law 


CIVIL    PROCEDURE    REPORTS. 


Knapp  V.  Simon. 


will  imply  a  promise  to  indemnify  in  favor  of  a  surety 
if  none  is  expressed."  Holmes  v.  Weed,  19  Barb.  128  ; 
Aspinwall  v.  Sacclii,  57  N.  Y.  331  (335,  33(5).  .  .  .  The 
suit  is  for  money  paid  to  the  defendant's  use  under  an 
agreement  to  relieve  the  plaintiff  from  all  liability  ;  in 
other  words  the  plaintiff  paid  the  defendants  a  con- 
sideration to  become  principals  to  Cobb,  as  between 
the  plaintiff  and  the  defendants.  And  they  did  so  by 
force  of  their  assumption  and  agreement  to  p:iy  the 
debt  for  which  plaintiff"  was  liable.  AVilliaras  v.  Shell}^, 
37  i\^.  Y.  375;  Waddington  ?)..  Vredenburgh,  2  Jo/m.s. 
Cas.  327 ;  Morgan  ».  Smith,  70  N.  Y.  637  ;  Holmes  v. 
Weed,  19  Barb.  128  (13,:).  The  plaintiff  and  defend- 
ants (because  of  plaintiff's  failure  to  disclose  to  Cobb-, 
who  were  his  principals),  were  both  liable  to  Cobb, 
Nason  V.  Cockroft,  3  Duer^  366  ;  Coleman  o  Bank  of 
Elmira,  53  N.  Y.  388  (394) ;  Cobb  v.  Knapp,  71  Id.  348  ; 
Story  on  Agency^  §  266,  267  ;  Meeker  «.  Claghorn,  44 
N.  y.  349.  .  .  .  '*  A  factor  or  other  mercantile  agent 
who  contracts  in  his  own  name  on  behalf  of  his  prin- 
cipal is  a  trustee  of  an  express  trust,  and  is  the  proper 
party  to  bring  an  action  upon  the  contract,"  Grin- 
neH'.  Schmidt,  2  Sandf.  705,  706  ;  Ladd  v.  Arkell,  37  N. 
Y.  Super.  CL  (5  /.  &  8.)  35  (40)  ;  Rowland  d.  Phalen, 
1  Bosw.  43  ;  Considerant  v.  Brisbane,  22  ]\\  Y.  289  ; 
Davis  V.  Reynolds,  48  How.  Pr.  R.  210  ;  aff'd,  5  Hun, 
651  ;  Morgan  v.  Reid,  7  Abb.  Pr.  215  ;  Brown  v.  Cherry, 
56  Barb.  Q85.  .  .  .  By  the  terms  of  the  settlement, 
even  if  Knapp  had  sold  the  grain  as  princi[)al  he 
became  surety  when  they  promised  to  pay  his  liability 
to  the  third  party  from  whom  he  bought.  Savage  v. 
Putnam,  32  N.  Y.  5ol  ;  Morss  v.  Gleason,  64  Id.  204  ; 
Colgrove  -G.  Tall  man,  67  Id.  95.  .  .  .  The  charge  of 
the  court  that :  "  If  in  this  transaction  the  plaintiff 
acted  as  i)rincipal  and  made  a  sale  of  this  wheat  to  the 
defendants  the  plaintiff"  cannot  recover  in  the  present 
action,"  which  is  excep)ted  to,  was  erioneous.    Because 


CIVIL    PROCEDURE    REPORTS. 


Knapp  V.  Simon. 


(1)  there  is  no  evidence  that  he  acted  as  principal ;  bnt 
the  evidence  is  uncontradicted  that  he  acted  as  broker  ; 

(2)  at  the  time  of  the  alleged  settlement  the  plaintiff 
took  fifty  cents  on  the  dollar  of  an  indebtedness  of 
$34,000,  upon  the  consideration  that  Cobles  claim 
should  be  settled  by  the  defendants ;  and  even  if  he  had 
been  principal,  he,  upon  such  agreement,  as  between 
the  parties  to  this  action,  became  surety.  Savage  v. 
Putnam,  32  iV.  T.  501 ;  Morss  v.  Gleason  64  Jd.  204  ; 
Colgrove  v.  Tallman,  67  Id.  95.  The  case  was  tried 
without  leference  to  the  pleadings,  and  the  question 
cannot  be  raised  upon  appeal  that  the  plaintiff  did  not 
sue  for  money  paid  to  the  defendant's  use,  the  evi- 
dence clearly  establishing  that  he  did  sue  for  money 
paid  as  surety  to  the  defendant's  use.  Cowing  v.  Alt- 
man,  79  ^\  Y.167;  McKechnie  v.  Ward,  58  Id.  541, 
(542)  ;  McGoldrick  c.  Willits,  52  Id.  612  ;  Drake  v.  Kim- 
ball, 5  Sand/.  237.  The  complaint  that  plaintiff  paid 
as  surety,  was  good,  under  the  common  law  count  lor 
money  paid  to  the  defendant's 'use.  .  .  .  Cliiity  s 
Precedents  on  Pleading  (3d  Ed.)  33  ;  Bull€n&  LeaJces'' 
Precedents^  p.  34;  Chittijs  Treatise  on  Pleadings 
(16th  Am.  Ed.),  33.  "  An  instruction  which  assumes  the 
existence  of  facts  of  which  there  is  no  evidence  is  mis- 
leading and  erroneous."  Jones  v.  Randolph,  14  Otto 
{U.  S.)  108.  And  there  being  no  evidence  from  which 
such  a  presumption  could  be  drawn  it  was  error  to 
submit  the  question  to  the  jury,  Algnrv.  Gardner,  54 
iV.  Y.  360.  *'The  suhmissicm  by  the  judge  to  the  jury 
of  an  hypothesis  wholly  unwarranted  bj'  the  evidiMirc, 
is  eiror  for  which  a  new  tiial  will  be  awarded."  Storey 
V.  Brennan,  15  JV.  Y.  524;  llanis  n.  "Wilson,  1  Wend. 
611;  Losee  ?).  Buchanan.  61  Barb.  86  (09);  Gale  v. 
Wells,  12  Barb.  84  (94),  General  evidence  has  no 
weight  where  the  facts  are  provcnl  showing  ])re<jisely 
what  was  done.  Steel  v.  Benham,  84  JV.  Y.  634,  04o  ; 
Miller  v.  Long  Island  R.  R.  Co.,  71  Jd.  380.     ''  Where 


CIVIL    PROCEDURE    REPORTS. 


Knapp  V.  Simon. 


in  submitting  a  cause  to  a  jury  the  judge  instructed 
them  that  they  may  find  a  verdict  for  the  defendant 
upon  either  of  two  distinct  grounds,  and  the  charge 
upon  one  of  the  questions  is  en-oneous  in  point  of  hiw, 
a  verdict  for  the  defendant  will  be  set  aside,  as  for 
aught  appealing  it  may  be  based  on  untenable 
grounds."  Sayre  v.  Townsend,  15  Wend.  647;  Rog- 
ers ?).  Murray,  3  Bosio.  357  ;  Weber  ?5.  Kingsland,  S  Id. 
415  (416) ;  Green  v.  Hudson  Riv.  R.  R.  Co.,  32  Barb.  25. 

A.  J.  Vanderpoel  and  H.  W.  BooJcstmser  {Vander- 
poel.  Green  &  Ciimhi(]f<^  attorneys),  for  respondent. 

The  court  properly  directed  a  verdict  for  the  de-' 
fendant  Simon.  The  plaintiff  and  defendant,  by  mov- 
ing the  court  to  direct  a  verdict  eacli  in  his  favor,  con- 
ceded tliat  thei'e  was  no  question  of  fact  to  be  con- 
sidei'ed  bj^  the  jury,  and  that  the  case  presented  only 
questions  of  hiw  to  be  detei  mined  by  the  couit.  Win- 
cheil  -0.  Hicks,  18  JV.  Y.  5m  ;  O'Neill  o.  James,  43  Id. 

84;  First  Nat'l   Bank,  etc.  v.  Dana,  79 /cZ.  108 

Plaintiffs  right  to  recover  ifi  this  action  does  not  de- 
pend on  the  lecovery  oi  judgment  in  Cobb  against 
Knapp,  but  upon  the  terms  and  conditions  of  the  jmr- 
chase  and  sale  of  the  wheat  niadeby  Kna]ip  on  October 
23,  1868.  No  new  terms  weie  made  after  that  time. 
Cobb  recoveied  of  Knapi>,  because  in  making  the  pur- 
chase of  him  he  failed  to  state  the  fact  that  lie  was 
acting  as  a  broker  merely,  and  chose  to  deal  with  Cobb 
as  [jrincipal.  His  position  as  X3rincii)al  was  iixed  by  the 
agreement  of  October  23,  1868.  Cobb  v.  Knapp,  42  N. 
J.  Super.  Ct.  (10  /.  cfc  >8'.)D1  ;  rev'd  71  iT.   Y.  348. 

RuGER,  Cli.  J. — Tn  1888  the  phiintiff,  being  a  grain 
brolver,  [)urcliased  of  one  Carlos  Cobb,  for  and  at  the 
request  of  the  defendants,  the  firm  of  C.  A.  Steen  & 
Co.,  a  quantity  of  wheat,  for  cash  on  delivery.  The 
plaintiff  did  not  disclose  the  names  of  his  principals 


CIVIL    PROCEDURE.  REPORTS. 


Knapj)  V.  Simon. 


upon  makiDg  such  purchase.    The  grain  was  delivered 
-and  has  never  been  pnid  for  by  the  defendants. 

The  effect  of  a  purchase  of  j^roperf  y  by  an  agent 
[']    who  does  not  disclose  the  name  of  his  principal  to 
the  vendor  at  the  time  of  such  purchase,  is  to  render 
the  agent  personally  liable  to  the  vendor  for  the  pur- 
chase price. 

The  agent  is  under  no  legal  or  moral  obligation 
[*]     to  make  such  disclosure,  and  the  only  consequence 
of  an  omission  is  to  create  a  liability  which  he 
might  escape  by  informing  the  vendor  of  the  circum- 
stance of  his  agency  and  the  name  of  his  principal. 

The  vendor  may,  however,  upon  discovering  the 
name  of  the  principal  in  the  transaction,  also  hold  him 
responsible  for  the  price  of  the  ])roperty  bought,  pro- 
vided he  has  not  in  the  meanwhile  in  good  faith 
[*]  paid  such  price  to  the  agent.  He  may  therefore 
pursue  either  the  agent  or  the  principal,  or  both, 
until  he  recovers  the  contract  price.  Cobb  v.  Knapp, 
71  iV;  Y.  348. 

It  appears  in  evidence  in  this  case  that  Cobb  did,  in 
1868,  bring  an  action  against  the  jirincipuls  for  the 
price  of  such  wheat,  bat  was  induced  soon  after  to  dis- 
continue it.  ^ 

The  debt  to  Cobb  not  having  been  paid,  in  1873,  he 
brought  an  action  therefor  against  the  plaintiff,  which 
resulted  in  his  obtaining  a  judgment  for  the  balance  of 
;    the  price  of  the  wheat  remaining  unpaid. 

Knapp  was  there  held  liable  upon  the  ground 
p]  that  by  reason  of  the  non-disclosure  of  the  name 
of  his  principal  he  became  j^ersonally  linble  for 
the  purchase  i)rice  of  the  property  bought,  and  it  was 
further  held  that  he  wasnotdiscliprged  Iroinsuth  linbil- 
ity  by  reason  of  the  action  brought  b}'  Cobb  against  the 
defendants  for  the  siime  cause  of  action.  Cobb  v. 
.    Knapp   {supra).     The   judgment   thus  recovered,  the 


CIVIL    PROCEDURE    REPORTS. 


Knapp  V.  Simon. 


plaintiff  was  compelled  to  pay,  and  he  now  seeks  to 
recover  back  the  money  i)aid  by  him. 

When  a  broker  purchases  or  sells  property  without 
disclosing  to  the  respective  jirincipals  in  the  transac- 
tion the  name  of  the  party  for  whom  he  acts,  he  be- 
comes, on  the  one  side,  liable  personally  for  the 
[']  i)urchase  price  of  the  property  bought,  and,  on  the 
other,  is  entitled  to  collect  such  price  from  the. 
principal  at  whose  instance  a  purchase  was  made. 

The  vendee  in  such  a  case  can  relieve  himself 
[•]    from  liability  to  the  broker  only  by  showing  pay- 
ment of  the  contract  price  by  him  to  the  original 
vendor  or  a  release  for  a  good  or  valuable  consideration 
from  the  broker. 

A  cause  of  action  having  once  accrued  to  the 
[']     broker,  and  becoming  vested  in  him,  can  be  dis- 
charged only  by  payment  or  release.     Seymour  v. 
Minturn,  17  Johns.  170. 

The  evidence  shows  that  about  the  time  of  this  pur- 
chase, the  plaintiff  brought  an  action  against  the  de- 
fendants to  recover  upon  a  general  balance  of  account, 
wliich  included  the  purchase  price  for  the  wheat  in 
question.  That  suit  never  proceeded  to  judgment,  but 
was  settled  by  the  parties,  the  claim  now  made  being 
expressly  excepted  from  the  operation  of  such  settle- 
ment, the  defendants  then  agreeing,  as  part  considera- 
tion therefor,  to  pay  and  discharge  the  liability  to 
Cobb. 

That  action,  therefore,  did  not  change  the  original 
relations  of  the  parties,  except  as  they  were  affected 
by  the  express  agreement  of  the  defendants  to  assume 
and  pay  the  Cobb  claim,  and  it  left  the  defendants  still 
liable  to  the  plaintiff  in  some  form  of  action  for  the 
payment  of  the  price  of  the  wheat. 

As  already  stated,  Cobb,  about  the  same  time,  hav- 
ing discovered  the  names  of  the  principals  for  whom 
'jbe  plaintiff  acted  in  the  purchase  of  the  wheat,  sued 


10  CrVTL    PROCEDTTRE    REPORTS.' 

— 1 

Knapp  V.  Simon.  ! 

them  to  recover  its  price.  This  action  never  proceeded 
to  judgment,  but  was  j^rocured  to  be  discontinued  by 
an  arrangement  made  between  Ulrich  Simon,  one  of 
the  defendants,  and  Cobb,  whereby  Cobb  agreed  to 
discontinue  it  and  release  Simon  individually  from  the 
claim,  upon  payment  by  him  of  one-third  of  the  price 
of  such  wheat.  This  agreement  was  performed  by 
Simon,  and  he  paid  to  Cobb  the  amount  agreed  upon, 
and  received  from  him  a  release  of  his  individual  lia- 
bility in  accordance  with  the  provisions  of  the  joint 
debtors'  act.  It  is  claimed  by  the  defendant,  Simon, 
that  the  plaintiff  was  present  at  the  time  of  this  agree- 
ment, knew  its  terms  and  conditions,  and  assented 
thereto.  This  fact,  although  controverted  by  the  plaint- 
iff herein,  must,  in  the  consideration  of  the  case,  un- 
der the  findings  of  the  jury,  be  assumed  by  us  to  be 
true. 

It  is  claimed  by  the  defendant,  Simon,  that  this  fact 
in  some  way  operates  as  a  discharge  of  him  from  his 
liability  to  the  plaintiff. 

There  was  practically  no  conflict  in  the  evidence, 
and  it  cannot  be  successfully  disputed  that  an  agree- 
ment was  made  upon  the  settlement  of  the  former 
action  between  the  present  parties,  whereby  the  defend- 
ants were  to  assume  the  payment  of  the  debt  owing 
to  Cobb,  and  were  to  i;elieve  the  plaintiff  from  his  lia- 
bility therefor.  This  agreement  was  made  upon  a 
valid  consideration,  viz.,  the  discontinuance  of  the 
action  and  the  release  by  the  i)laintiff  to  the  defend- 
ants of  a  valid  claim  for  a  large  amount,  and  it  rendered 
the  defendants  liable  to  the  plaintiff  for  any  damages 
which  he  might  incur  by  reason  of  their  breach  of 
the  agreement. 

It  would  seem,  therefore,  that  the  i)laintiff  has  held 
two  caus«?s  of  action  against  the  defendants,  viz.,  one 
upon  the  original  contract  for  the  purchase  price  of 
the  wheat,  and  secondly,  that  arising  out  of  a  breach 


CIVIL    PROCEDURE    REPORTS.  '11 

tt  

j  Knapp  c.  Simon. 

of  defendants'  undertaking  to  shield  him  from  liability 
to  Cobb  on  account  of  such  purchase. 

If  the  first  cause  of  action  was  not  merged  in  the 
agreement  out  of  which  the  second  arose,  it  would 
probably  now  be  barred  by  the  Statute  of  Limitations, 
without  regard  to  the  character  in  which  the  plaintiflE 
acted  in  making  the  purchase,  whether  as  i)rincipal  or 
broker. 

It  would  seem  therefore,  when  the  case  was  sub- 
mitted, that  the  evidence  disclosed  a  good  cause  of 
action  in  favor  of  the  plaintiff,  by  reason  of  the  failure 
of  the  defendants  to  relieve  the  plaintiff  from  his  lia- 
bility to  Cobb,  and  entitled  him  to  recover  in  this 
action  upon  the  proof  that  he  had  been  compelled  to 
pay  Cobb  for  the  balance  due  on  the  xmrchase  price 
of  the  wheat,  unless  Simon  was  discharged  by  reason 
of  the  circumstances  attending  the  release  given  to  him 
by  Cobb. 

It  is  true  that  the  complaint  in  the  case  does  not 
in  terms  set  forth  all  of  the  facts  necessary  to  support 
the  second  cause  of  action  above  referred  to,  but  on 
the  trial  the  evidence  supporting  it  was  admitted  with- 
out objection,  and  no  question  was  at  any  time  raised 
as  to  the  sufficiency  of  the  complaint  to  sustain  the 
cause  of  action  proved. 

Under  the  circumstances,  this  court  on  appeal  will 

consider  the  case  upon  the  cause  of  action  disclosed 

by  the  evidence,  and  disregard  any  objections  to  tlje 

sufficiency  of  the  pleadings  whioh  were  not  made 

["]    in  the  court  below  (Southwicki).  First  Nat'l  Bank, 

84  N.  Y.  420;  Cowing  v.  Altman,  79  Id.  167). 

It  was  also  the  duty  of  the  court  below,  in  the  ab- 
sence of  objections  to  the  sufficiency  of  the  complaint, 
to  give  the  plaintiff  the  benefit  of  any  cause  of 
[•]     action  established  by  the  evidence,*  and  a  refusal 

*  See  Code  of  Civil  Procedure,  §§  539-541. 


12  CIVIL    PROCEDURE    REPORTS. 

Kiiapp  V.  tjiraon, 

by  it  to  direct  the  jury  to  lind  in  accordance  wirli 
the  case  made  by  sncli  evidence  would  be  error  (Mc- 
Goldrick  t.  Willits,  62  N.  Y.  012.) 

Upon  a  former  appeal  in  this  case,  reported  in  86 
N.  Y.  311,  this  court  reversed  a  jud«;ment  in  favor  of 
the  defendants,  upon  the  ground  that  the  court  on  the 
trial  erred  in  assuming  as  matter  of  law,  that  the  pres- 
ence of  Knappat  the  settlement  of  tht?  action  brought 
by  Col>b  against  the  defendants,  and  his  assent  to  the 
release  then  given  by  Cobb  to  the  defendant  Simon, 
operated  as  a  discharge  of  Simon  from  his  liability  to 
the  plaintiff. 

It  was  held  upon  the  evidence  as  it  there  appeared, 
that  the  fact  of  such  assent  was  a  controverted  fact, 
and  the  court  erred  in  taking  the  question  from  the 
jury  against  the  objection  of  the  plaintiff.  The  case 
does  hot  assume  to  de(;ide  w  hat  would  be  the  effect  of 
an  assent  by  the  plaintiff  to  the  ex<^cution  of  there- 
lease,  in  case  such  assent  was  establisiied  by  the  evi- 
dence. It  seems  to  liave  been  retried  upon  the  theory 
that  that  question  had  been  decided  by  this  court 
upon  the  former  appeal,  and  no  question  seems  to 
have  been  made  on  tJje  retrial  as  to  the  legal  effect  of 
such  an  assent. 

Inasmuch  as  the  question  was  not  raised  upon  the 
trial  below,  and  has  not  been  "argued  here,  we  do  not 
now  feel  called  to  express  an  opinion  upon  the  ])oint. 
Aside  from  an  exception  to  the  admission  of  evidence, 
bot  one  question  is  presented  upon  this  appeal  for  our 
consideration,  and  that  arises  over  the  exception  taken  j^ 
by  the  plaintiff  to  a  portion  of  the  charge.  ji 

The  court,  by  its  instructions,  left  to  the  jury  but 
two  questions  for  their  consideration,  and  those,  as 
stated  in  the  language  of  the  court,  were  as  follows : 
let.  "If  in  this  transaction  the  plaintiff  acted  as  prin- 
cipal and  made  a  sale  of  this  wheat  to  the  defendants, 
the  plaintiff  cannot  recover  in  the  ijresent  action.    If 


CIVIL    PROCEDURE    REPORTS.  13 

Knapp  V.  Simon. 

on  the  other  hand,  he  simply  acted  as  broker  in  the 
transaction,  then  you  have  a  further  question  to  con- 
sider, and  that  is  in  respect  to  this  release."  2d.  "If 
the  plaintiff  was  present  or  acquiesced  in  the  agree- 
ment by  which  Mr.  Simon  was  released,  then  the  de- 
fendant is  not  liable." 

No  exception  was  taken  by  the  plaintiff  to  the 
latter  portion  of  the  charge,  but  with  respect  to  the 
first  proposition  stated,  an  exception  was  properly 
taken.     We  do  not  see  how  the  defendants'  liability 

can  be  affected  by  the  character  in  which  the 
["]    plaintiff  acted  in   making  the  purchase  of   the 

wheat.  He  was,  upon  the  evidence  in  the  case 
entitled  to  recover  the  am-ount  he  had  been  compelled 
to  pay  Cobb,  unless  the  circumstances  attending  the 
release  of  Simon  by  Cobb  operated  as  a  discharge  of 
Simon's  liability  to  him.  The  defendants  were  always 
primarily  liable  for  the  purchase  price  of  the  wheat  as 
between  them  and  the  plaintiff. 

The  facts,  in  respect  to  the  character  in  which 
Knapp  acted,  in  the  transaction  in  question,  are  prac- 
tically undisputed.  The  defendants,  knowing  that  he 
was  a  broker,  applied  to  him  to  purchase  the  wheat 
for  them  as  a  broker.  Thej^  paid  him  commissions  as 
a  broker,  and  knew  and  dealt  with  liim  in  no  other 
character.      It  is   entirely  immaterial  that  tor  certain 

pujposes  he  may  be  regarded  b}-  certain  parties 
["]    as  a  principal  in  the  transaction.     He  was,  so  far 

as  the  defendants  are  concerned,  a  person  who  had 
incurred  a  liability  for  their  benefit,  and  from  which 
it  was  their  duty  to  relieve  him.  They  were  undoubt- 
edly entitled  to  invoke  the  benefit  of  the  Statute  of 

Limitations  as  a  bar  to  any  cause  of  action  which 
['"]    he  might  have  against  them,  and  this  bar  would 

enure  to  them  in  regard  to  any  liability  growing 
out  of  the  original  transaction,  irres^Dective  of  the  char- 
acter in  which  the  i^laintiff  acted  at  that  time. 


14  .CIVIL    PROCEBURE    REPORTS. 

Knapp  ».  Simon. 

If  he  acted  as  a  broker  in  the  transaction,  but  con- 
tracted in  his  own  name,  assuming  the  responsibilities 
of  a  principal,  his  rights  and  liabilities  would  be  the 
same,  and  no  other,  than  those  which  would  have 
attended  the  transaction,  if  his  real  character  had  been 
entirely  undisclosed. 

The  Statute  of  Limitations  would  have  been 
'["]  equally  a  bar  to  any  action  brought  by  him  with 
respect  to  the  original  transaction,  whether  he  had 
claimed  as  the  vendor  of  the  wheat  or  as  a  broker  en- 
titled to  enforce  the  contract  of  sale  as  the  trustee  of 
an  express  trust.  Considerant  v.  Brisbane,  22  N.  Y, 
389. 

We  think,  therefore,  when  the  court  instructed 

["]    the  jury  that  the  plaintiff's  right  to  recover  in  this 

action  depended  upon  the  fact  as  to  whether  he 

acted  as  a  principal  or  as  a  broker  in  respect  to  the 

purchase  of  the  wheat,  the  charge  was  erroneous. 

Having  arrived  at  the  conclusion  that  the  judgment 
should  be  reversed  for  this  reason,  we  deem  it  unneces- 
sary to  discuss  the  other  questions  in  the  case. 

The  judgment  should  be  reversed  and  a  new  trial 
ordered,  with  costs  to  abide  the  event. 

All  concur. 


CIVIL    PROCEDURE    REPOETS.  15 


Estate  of  Tildea. 


'  Estate  of  WILLIAM  TILDEN,  Deceased. 

-  Supreme   Court,    First   Department,    General 
'  Term,  January,  1884. 

§§  2481,  subd.  6,  2527. 

'Poxcer  of  surrogate  and.  of  supreme  court  to  open,  'Vacate  or  set  asida 

accounting  of  executors. — Irregular  service  of  citatiorii^—Ajypointment 

(f  guardian  ad  litem  in  surrogate's  court. — Effect  of  agreement 

between  heirs  on  liability  of  executor. 

Tha  surrogate  has  BUthority  to  open,  vacate  or  set  aside  a  decree  made 
on  tlie  final  accounting  of  executors,  and  on  appeal  from  an  order 
denying  a  motion  for  such  relief,  the  general  term  of  tlic  supreme 
court  lias  the  same  power  and  must  review  the  determination  of  the 
surrogate,  as  if  an  original  application  was  made  to  it.[^] 

Prior  to  the  passage  of  the  law  conferring  upon  surrogates  the  author- 
ity to  appoint  special  guardians  on  the  accounting  of  executors, 
«&c.,  they  possessed  inherent  authority  to  appoint  guardians  «cZZj7em 
to  look  after  and  protect  the  interest  of  next  of  kin  not  appearing 
who  wQie  under  tliie  age  of  21  years,  and  the  fact  that  no  statute 
existed  requiring  the  exercise  of  this  authority,  did  not  justify  the 
omission  to  make  such  an  appointment.  ['] 

Where  citations  to  attend  the  accounting  of  executors  were  served 
upon  an  infant  interested  in  the  estate  and  his  testamentary  guard- 
ian, who  were  absent  from  the  country,  irregularly  for  want  of  time, 
and  they  did  not  appear,  and  the  infant  was  not  represented  on  the 
accounting  and  no  guardian  ad  litem  was  appointed  for  him, — 
Held,  that  so  far  as  it  affected  the  interests  of  the  petitioner,  the 
hearing,  which  resulted  in  the  decree  following  the  first  accounting 

!  was  clearly  irregular  and  permitted  the  applicant  to  disaffirm  its 
autliority  and  apply  for  its  reconsideration  after  he  attained  the 
age  of  21  years.  [',.■*] 

Where  an  infant  legatee  was  charged  in  the  accounts  of  the  executors 
with  "  one  fotu-th  of  the  general  expenses  abroad,  &c.,  and  for  house 
expenses,  «&c.,"  of  his  motlier,  with  whom  he  resided,  and  the 
amount  so  paid  for  his  support,  education  and  use  during  min- 
ority, averaged  about  $7,705  ))er  year,  and  it   appeared  that  the 

;  guardians  appointed  to  represent  him  on  the  accounting  were  of  no 
service  to  the  rights  and  interests  of  their  ward  and  apparently 


16  CIVIL    PROCEDURE    REPORTS. 

Estate  of  Tildcu. 

made  no  efifort  to  investigate  tlic  pioprieiy  of  any  of  the  ciiMrgca 
made  against  him,  and  that  after  he  attained  liis  majority  and  re- 
ceived information  of  the  actual  state  .of  the  accounts  he  a[»|>Iied 
with  reasonable  diligence  to  open  the  accountings  and  for  liberty 
to  contest  them,-  Held,  that  his  application  should  be  granted  ;[*,  *, 
\  *]  that  answers  to  the  complaints  and  objections  of  the  petitioner 
should  not  be  specially  considered  on  the  application,  for  llmt  could 
not  satisfactorily  be  done  on  fx  parte  allegations  or  affidavits  made 
in  support  of  or  to  resist  such  a  proceed  lug,  ['J  tliat  the  law  ha?  pre- 
scribed a  different  mode  of  investigation  by  allpwing  the  party 
whose  interests  are  affected  by  the  charges,  upon  evidence  taken  in 
the  usual  way,  to  contest  their  legality,  and  piopriety  and  that  as  the 
applicant  was  supplied  with  no  adequate  opportunity  for  doing  so 
during  minority,   the   privilege  should   still  be. accorded  him. ['J 

Where  a  will  gives  the  executors  liberty  to  pay  over  the  rents,  income 
and  profits  of  an  infant's  share  in  the  estate  directly  to  his  mother, 
who  was  his  testamentary  guardian,  for  his  support,  education  and 
comfort,  and  they  did  not  do  so,  but  merely  allowed  charges  made 
by  her  against  the  infant,  taking  her  receipts  practically  as  their 
authority  therefor, — Held,  that  the  receipts  would  have  no  such 
force  or  weight  as  to  preclude  the  infant  from  contesting  such 
charges,  ['"] 

Executors  are  not  relieved  from  liability  in  their  management  and 
disposition  of  the  personal  estate  of  their  testator  by  any  agree- 
ment between  the  devisees,  fixing  and  determining  the  rights  of 
each  and  releasing  several  from  claims  for  over-advances  by  the 
executors,  or  by  anything  done  thereunder.  ["J 

{Decided  March  7,  1884.) 

Appeal  from  an  order  of  tbesiirrogateof  New  York 
county,  denying  petition  of  Beverly  B.  Tilden,  that 
the  decree.s  made  upon  four  several  accountings  of  the 
executors  of  William  Tilden  deceased  be  opened  and 
for  a  rehearing  thereof  so  far  as  they  affect  his  rigiits. 

I       The  facts  appear  from  the  opinion. 

William  J.  Macfarlane^  for  appellant. 

Charles  E.  Tracy  {J).  II.  Olmsttad^  attorney),  for 
respondents. 

Daniels,  J. — The  testator,  William  Tilden,  died 
on  the  26th  day  of  June,  1809,  leaving  a  large  real  and 


CIVIL    PROCEDURE    REPORTS.  17 

Estate  of  Tildcn. 

personal  estate  to  be  disposed  of  according  to  his  will 
and  codicils.  They  were  admitted  to  probate  by  tlie- 
surrogate  of  the  county  ol'  New  York  on  or  about  the 
19tli  of  July,  1869,  and  letters  testamentary  were 
issued  to  four  persons  named  in  the  will  as  executors. 
Another  person -^vas  added  as  executor  early  in  the 
year  1^70,  and  a  change  was  afterwards  made  in  that 
year  by  substituting  one  other  person  in  place  of  one 
of  the  original  executors  \vho  had  died,  and  a  similar 
change  was  made  as  to  another  in  1877.  At  the  time  of; 
the  decease  of  the  testator  the  petitioner  was  near  the- 
age  of  eleven  years,  he  having  attained  his  majority 
on  or  about  the  lOtli  of  December,  1880.  During  his- 
minority,  four  accountings  were  held  by  the  executors- 
of  the  estate.  The  tirst  in  Februar}^  1872,  the  second 
in  the  summer  of  1874,  the  third  in  the  spring  of  1877 
and  the  fourth  in  the  spi'ing  of  1880. 

The  jjetitioner  claimed,  in  support  of  his  applica- 
cation,  that  improper  charges  had  been  made  and 
allowed  against  him  on  each  of  these  accountings. 
He  also  claimed  that  the  executors  had  failed  to  en- 
force the  guarantee  of  William  Tilden  Elodgett  of  sec- 
ond mortgages  received  by  them  in  partial  settlement, 
of  a  large  indebtedness  in  favor  of  the  estate  against 
him.  If  he  was  probably  right  in  the  complaint* 
made  by  him,  ample  authority  w^as  given  by  subdivi- 
sion 6  of  section  2481  of  the  Code  of  Civil  Procedure, 
to  the  surrogate  to  open,  vacate  or  set  aside  the  decree., 
so  far  as  that  might  be  necessary  for  the  further  exami- 
nation of  the  items  to  which  the  application  was 
[']  directed,  and  upon  appeal  from  the  determination 
of  the  surrogate,  the  general  term  of  the  supreme 
court  has  the  same  power  as  the  surrogate  ;  and  his 
determination  must  be  reviewed  as  if  an  original  appli- 
cation was  made  to  that  term.  Under  this  authority 
the  entire  controversy  presented  by  the  petition  and 
the  answer  to  it,  is  to  be  considered  u^wn  the  appeal 
Vol.  VI.— 2 


18     .  CIVIL    PROCEDURE    REPORTS. 

Estate  of  Tilden. 

in  the  same  manner  in  which  the  surrogate  himself 
had  the  authority  to  consider  it.  In  partial  sup})ort 
of  the  allegations  made,  it  was  alleged  and  shown  that 
no  special  guardian,  or  guardian  ad  litem,  was  ap- 
pointed by  the  surrogate,  to  take  clmrge  of  the  inter- 
ests of  the  petitioner  on  the  first  accounting.  His 
mother  had  been  appointed  by  the  testatoi-'s  will  his 

testamentary  guardian,  but  they  were  in  Germany 
[*]     when  the  citation  was  issued  on  the  ap[)li('ali()U 

of  the  executors,  and  it  was  served  probably 
irregularly,  at  least,  for  want  of  time  (3  R.  S.  6th 
ed.  102,  §  70),  upon  himself  and  his  mother  in  that 
country.  Neither  she  nor  any  other  party  in  any 
form  apjjeared  for  him  on  the  accounting  to  investi- 
gate or  protect  his  interests.  On  the  second  account- 
ing it  is  recited  in  the  decree  that  a  special  guardian 
for  this  purpose  w-as  appointed  by  the  surrogate,  and 
a  similar  statement  is  contained  in  the  decree  on  the 
third  accounting,  and  on  the  fourth  a  guardian  was 
appointed  on  the  petition  of  the  ap[)ellant  himself. 
But  it  is  alleged  in  his  behalf  that  neither  of  these  per- 
sons undertook  or  made  any  special  investion  of  his 
interests. 

And  as  to  the  guardians  on  the  second  and  third 
of  the  accountings,  there  seems  to  be  good  reason  to 
believe  that  these  charges  of  inattention  made  by  him 
are  well  founded.  Upon  the  fourth  accounting  the 
guardian  has  sworn  that  he  did  inform  himself  of  all 
the  facts  bearing  on  the  interest  of  the  infant,  for  the 
period  included  in  such  accouilting,  from  ev^ry  source 
which  seemed  to  him  to  be  available.  But  that  he 
resisted  any  of  the  charges  made  against  his  ward  in 
the  accounts  has  not  been  stated  by  him.  Neither 
does  the  case  made  in  his  behalf,  or  in  behalf  of  the 
executors,  show  that  any  special  investigation  took 
place  at  any  time  before  the  surrogate  relative  to  the 
charges  now  complained  of  as  improperly  allowed  to 


CIVIL    PROCEDURE    REPORTS.  19 

Estiite  of  Tilden. 

the  executors.  It  has  been  urged,  as  chapter  156  of 
the  hiws  of  1874  specially  conferred  upon  surrogates 
the  authority  to  appoint  special  guardians  on  the  ac- 
coiintings  of  executors,  &c.,  that  he  had  no  power  lo| 
make  such  appointment  at  the  time  of  the  first  ac-' 
counting  of  the  executors.  But  in  this  position  the 
executors  do  not  appear  to  be  sustained  by  authority. 
For  before  the  ennctment  of  this  statute,  it  was  prac- 
tically held  that  the  surrogate  possessed  the  in- 
[^]  herent  authority  arising  out  of  the  necessities  of 
the  situation,  and  the  object  to  be  attained  by 
means  of  an  accounting,  to  appoint  a  guardian  ac? 
litem  to  look  after  and  protect  the  interest  of  the  next 
of  kin  not  appearing,  who  should  be  under  the  age  of 
twenty-one  years  (Kellett  v,  Rathbun,  4  Paige^  102). 
The  fact  that  no  statute  existed  requiring  the  exercise 
of  this  authority  did.  not  therefore  justify  the  omission 
to  make  such  an  appointment.  The  hearing,  so  far  as 
it  affected  the  interests  of  the  petitioner,  which 
[*]  resulted  in  the  decree  following  the  first  account- 
ing, was  clearly  irregular,  and  permitted  the  appli- 
cant to  disaffirm  its  authority  and  apply  for  its  recon- 
sideration after  he  attained  the  age  of  twenty-one  years. 
Dayton  on  Surrogates^  3d  ed.  50G~7. 

The  first  accounting  extended  over  a  period  of  two 
years  and  about  four  months,  andi.":  included  a  general 
charge  amounting  to  the  sum  of  $13,880.58,  for  one- 
fourth  of  the  general  expenses  abroad,  &c.,  and  for 
["]  house  expenses,  &c.,  to  date,  which  w\as  the  1st  of 
October,  1871.  This  was  a  large  amount  for  the 
support,  maintenance  and  education  of  the  petitioner, 
who  was  then  a  boy  of  about  eleven  or  twelve  years  of 
age,  and  the  propriety  of  its  investigation  would  seem 
to  be  suggested  by  its  extent  and  the  statement  of  it 
which  was  given.  Other  charges  of  a  similar  general 
nature  were  contained  in  the  account  settled  on  the 
other  accountings,  amounting  in  the  aggregate  to  up- 


20  CIVIL    PROCEDUIIE    REPORTS." 

Estate  of  Tilden, 

wards  of  $27,000.  Neither  of  those  charges  seem  to  have 
been  challenged  or  resisted  by  either  one  of  the  guar- 
dians appointed  to  represent  tlie  petitioner  on  the 
second,  third  or  fourtii  accountings,  but  they  were 
wholly  accepted  and  passed. as  they  were  contained  in 
the  executors' accounts.  And  by  means  of  these  and 
other  charges  extending  to  about  the  2yth  of  June, 
1881,  the  sum  of  $84,757.15  was  in  the  aggregate  charged 
to  have  been  advanced  for  the  support,  education  and 
use  of  the  petitioner.  Tlie  amounts  appropriated  to 
this*  purpose  during  the  period  ot*  his  minoiity  was 
on  an  average  of  about  $7,705  each  year.  It  may  be 
that  these  charges  were  very  properly  made  and  ihat 
the  executors  discreetly  and  judiciously  exercised  the 
authority  with  which  they  had  been  invested  by  the 
testator.  But  inasmuch  as  they  were  in  no  manner 
made  the  subject  of  contest  or  investigation  on  behalf 
of  the  petitioner  in  the  accountings  which  took  place, 
a  case  was  presented  in  which  it  would-  seem  to  be 
proper,  after   the  attainment  by  him   of   the  age  ol 

twenty-one  years,  to  allow  him  to  contest  the  pro- 
["]     priety  of  these  charges.     In  the  second  and  thiid 

accountings  the  appointment  of  the  giuirdians 
seem  to  have  been  regarded  as  soentirely  nnim[)ortant 
as  to  have  constituted  only  a  formal  compliance  with 
what  the  law  had  required  ill  that  resi)ect. 

The  guardians  were  of  iio  service   whatever  to  the 

rights  and  interest  of  iheir  ward,  and  ai)parently 
[']     made  no  effort  to  investigate  the  propriety  of  any 

of  the  charges  against  liim,  although  the  duty  to 
do  so  was  signilicantly  suggested  by  the  large  as  well 
as  very  general  charges  against  him  contained  in  the 
accourits.  For  on  December  J31,  1872,  he  was  charged 
$5,441.88  for  his  share  ol"  the  household  expenses  to 
date.  On  May  1,  1873,  a  like  chaige  of  $2,800.99  was 
made.  On  Deceml)er  31  of  the  same  year  another  of 
$2,048.40,  and  on  December  31,  1874,  a  like  chiiige  of 


CIVIL    PROCEDURE     REPORTS.  21 

Estate  of  Tildcn. 

$4,803.24,  during  most  of  whicli  period  it  is  srated  as  a 
matter  of  fact  tliat  the  petitioner  wns  absent  fi'om 
home  attending  boarding  school.  The  last  item  in  tlie 
third  accounting  was  equally  as  suggestive  in  the  same 
respect,  for  instead  of  charging  the  petitioner  with 
expenses  paid  out  on  his  behalf,  the  joint  ex[)enses  of 
himself  and  another  was  evidently  divided,  and  in  the 
division  the  sum  of  $7,050.60  was  charged  as  his  hnlf, 
and  very  much  the  same  seems  to  have  been  thecourse 
of  proceeding  as  to  the  chaiges  in  the  fourth  account- 
ing. The  same  propriety,  therefore,  manifestly  exists 
for  favorably  considering  his  application  for  liberty  to 
contest  the  items  forming  the  subject  of  complaint  on 
his  part  on  each  of  these  {iccouniings.  As  he  has 
applied  with  reasonable  diligence  for  liberty  to  make 
such  contest  after  he  artnined  his  full  nge  and  received 
information  of  the  actual  state  of  the  accounts,  the 
application  was  entitled  to  a  liberal  degree  of  considera- 
tion. And  the  same  observation  is  pertinent  to 
[']  the  alleged  failure  of  the  executors  to  enforce  the 
guarantees  of  the  second  mortgages  assigned  to 
them  by  William  T.  Blodgett. 

As  to  some  of  the  charges  affected  by  the  complaint 
of  the  petitioner,  it  is  alleged  that  the  facts  indicating 
them  to  be  correct  were  within  the  knowledge  of  the 
executors.  This  com[)laint  more  especially  relates  to 
expenditures  charging  him  with  one- fourth  of  the 
household  expenses  after  the  return  of  the  family  from 
Europe,  and  to  at  least  one  item  of  $2,000  stated  to 
have  been  paid  to  his  mother  for  his  board  when  he 
was  away  at  school,  and  did  not  board  with  her  for 
any  ])oition  of  the  time.  The  executors  have  asserted 
the  correctness  of  these  charges  on  the  grotmd  that  the 
household  was  maintained  in  part  by  his  mtnher  as  a 
home  for  the  petitioner.  They  have  also  insisted  that 
they  are  entitled  to  the  allowance  of  the  charges  sus- 
tained  by  these  several  decrees,  for  the  reason  that  th« 


'J8«  ^CIVIL^  PROCEDURE    REPORTS. 

t     ' ^ 

I—- r- •■ 

Estate  of  Tilden, 

petitioner's  mother,  as  testamentary  guardian,  made 
and  delivered  receipts  including  these  charges  to  the 
executors.  But  whether  these  grounds  shall  consti- 
tute satisfactory  answers  to  the  complaints  and  objec- 
tions presented  in  behalf  of  the  petitioner  should  not 
now  be  specially  considered,  for  that  cannot  be  done 
satisfactorily  upon  the  ea^jpar^*?  allegations  or  affidavits 
made  in  support  of  or  to  resist  such  a  proceeding.  For 

their  adjustment  the  law  has  prescribed  a  different 
[•J     mode  of  investigation,  and  that  is  by  allowing  the 

party  whose  interests  are  affected  by  the  charges, 
upon  evidence  taken  in  the  usual  way  to  contest  their 
legality  and  propriety,  and  as  the  applicant  was  sup- 
plied with  no  adequate  opportunity  for  doing  so  dur- 
ing his  minority,  that  privilege  under  the  authorities 
should  still  be  accorded  to  him.  Dayton  on  Surro- 
gates, 3d  ed.  50C-7,  643. 

The  application  has  been  further  resisted  under  the 
latter  clause  of  12th  paragraph  of  the  will,  bj'-  which 
the  executors  were  at  liberty  to  jjay  over  the  rents,  in- 
come iind  profits  of  the  infant's  one-fourth  of  theestate 

directly  to  the  widow,  to  be  laid  out  and  expended 
['•]    in  her  discretion  for  his  support,  education  and 

comfort.  But  this  authority  was  not  exercised  by 
the  executors.  They  did  not  pay  these  rents,  iuconie 
and  [>rofits  to  her  under  this  clause  of  the  will,  but  th*'}' 
merely  allowed  the  charges  made  against  the  peti- 
tioner, taking  her  receipts  practically  as  their  auth;  r- 
)ty  for  these  charges.  And  if  rhey  did  that,  as'it  li:i9 
been  alleged  they  did  with  good  reason  to  believe  that 
the  charges  themselves  were  to  a  large  degiep  un- 
founded and  improper,  the  receipts  should  have  no 
such  for(;e  or  weight  as  to  preclude  the  petitioner  from 
still  contesting  the  items  to  which  he  has  speci.-illy 
objected.  He  may  b«j  unable  to  maintain  the  ]n-opi  iety 
of  either  of  the  objections  urged  in  his  behalf,  but  it 
is  due  to  himself  and  also  to  the  executors,  who  are 


•       CIVIL    PROCEDURE    REPORTS.  23 

EsC.ate  of  TiMen. 

men  of  liigh  character,  that  an  iiivesrigation  should 
take  place  concerning  the  propriety  of  these  objections. , 
If  ihey  are  not  well  founded,  then  tlm executors  should 
not  be  subjected  to  the  imputations  which  have  been 
mride,  but  they  should  be  vindicated  by  the  action  of 
the  proper  authorities.  While  if  they  are  well  founded, 
the  rights  of  the  applicant  can  in  no  oilier  manner  be 
ascertained  than  by  making  a  like  investigation. 

After  the  petitioner  had  attained  the  age  of  twenty- 
one  3"ears,  an  agreement  was  entered  into  between- 
himself  and  his  three  older  brothers  for  the  set- 
["]  tlement  of  their  rights  nnd  interests  in  the  testa- 
tor's real  estate,^  and  its  division  between  them. 
The  tw^o  older  brothers  had  received  very  much  larger 
amounts  from  the  testator's  estate  than  the  two  broth- 
ers who  were  minors  at  the  death  of  tlie  testator,  and 
the  purpose  of  this  agreement  was  to  secure  a  division 
of  th«  reid  estate  upon  the  basis  of  the  rights  of  the 
brothers  under  the  will  and  codicils,  and  the  proper 
adjustment  of  the  nmounts  between  themselves,  which 
had  been  received  by  the  oldest  brothers.  This  agree- 
ment was  carried  into  effect  ;  the  real  estate  was  divi- 
ded, and  the  amounts  due  from  the  older  brothers  to 
the  younger  ascertained  and  adjusted.  And  because 
of  the  making  of  this  agreement  and  the  action  of  the 
l^arties  under  it,  it  has  been  objected  that  the  petition- 
er was  after  that  disabled  from  questioning  the  accu- 
racy of  the  accountings  to  which  his  complaints  have 
now  been  dire(!ted.  But  the  executors  were  noj:  parties 
to  this  agreement.  It  was  made  wholly  and  exclu- 
sively by  and  between  the  brothers  for  a  determina- 
tion and  settlement  of  their  lights  between  themselves 
and  it  in  no  manner  relieved  the  executors  from  liabil- 
ity in  their  management  and  disposition  of  the  per- 
sonal estate  of  the  testator.  If  the  applicant  had 
valid  claims  against;  them  which  had  neither  been  ad- 
mitted or  allowed,   neither  this   agreement  nor  any- 


24':  .     CIVIL    PROCEDURE    REPORTS.      ' 

Estate  «>f  Tildeu. 

thing' which  took  place  under  it  released  them  from 
that  liability,  or  precluded  him  from  asserting  and  en- 
forcing their  existence  against  the  executors.  It  was 
no  part  of  the  intention  of  the  agreement  entered  into 
to  relieve  them  in  any  res[)ect  from  any  liability  aris- 
ing out  of  their  management  and  administration  of 
tile  personal  estate,  and  all  that  afterwards  took  place 
between  the  parties  to  it  was  sim[)ly  by  way  of  per- 
forming its  stipulations  and  carrying  them  into  effect. 

As  the  case  has  been  presented  a  reasonable  right 
has  been  maintained  to  the  success  of  the  a[)plication. 
It  may  in  the  end  result  in  no  advantage  whatever  to 
the  applicant,  but  if  it  does  not  the  executors  are  en- 
titled to  have  that  known  and  ascertained  for  their 
own  proper  vindication.  But  if  the  charges  made 
shall  be  sustained  then  the  applicant  is  equally  and  as 
justly  entitled  to  the  benefits  which  may  be  secured 
to  him  in  that  manner. 

Other  points  than  those  which  have  been  considered 

have  been  presented  in  favor  of  the  applicant  and  also 

of  the  executors,  but  in  I  he  view  whii^h  has  been  taken 

of  those  already  considered,  these  do  not  requii-e  to  be 

discussed  or  d«termined.     For  without  them  there  is 

sufficient  in   the  cass^  to  require  the  ord^r  from  which 

the  api)eal  has  been  taken  to  be  reversed  and  an  order 

'entered  directing  the  four  decrees  to  l)e  so  far  set  aside 

.  and  vacated  as  to  allow   the  charges  drawn  in  contro- 

•  versy  by  the  applicant  to  be  made  the  subject  of  future 

investigation. 

The  order  should  be  reversed  and  such  an  order 
entered,  with  the  usual  costs  and  disbursements. 

.  Bkady,  J.,  concurred. 


CIVIL    PROCEDURE    REPORTS.     .  25 

Rutty  V.  Person. 

RUTTY  V.  PERSON,  et  al. 
N.  Y.  Superior  Court,  Special  Term,  Mat,  18S4. 

§  3253. 

Allowance.  —  What  is  sufficient  monetary  basis  for. 

Where,  iu  an  action  to  open  accounts,  tliere  was  notliiiig  to  show  the 
amouul  iiivolvofl,  except  ihe  statement  of  the  plaintill's  counsel  in 
opening  llie  case,  that  if  lie  succeeded  lie  expected  to  show  thatthe 
plaintiff  was  entitled  to  from  $.")0,000  to  $GO,000,  and  the  defend- 
ants succeeded  in  the  action  •.—Held,  that  an  extra  allowance  should 
be  granted  them. 

{Decided  May  24,  1884.) 

Motion  by  defendant  for  an  extra  allowance. 

This  was  an  action  to  open  accounts  on  the  ground 
of  fraud.  In  his  opening  address  x)laintifl:'s  counsel 
stated  that  if  he  succeeded  in  oxjeniiig  the  accounts  he 
expected  to  show  that  from  $50,000  to  $GO,OGO  was  due 
plaintiff.  There  was  nothing  else  to  show  the  amount 
involved.  The  action  was  referred,  and  the  referee 
reported  in  favor  of  defendants.  Defendants  then 
moved  for  an  extra  allowance. 

Stephen  P.  Nash  {Kol)he  Brothers,  attorneys),  for 
the  motion. 

Plaintiff's  statement  in  his  opening  address  affords 
a  sufficient  monetary  basis  for  an  extra  allowance. 

Eugene  H.  Pomeroy  &  John  E.  Eustis,  opposed. 

Fkeedma^,  J. — Allowance  of  $500  granted. 


26  CIVIL    PROCEDURE    REPORTS. 

Sprague  v.  Parsons. 

SPRAGUE  ®.   PARSONS,  et  al. 

N.  Y.  Common  Pleas,  Special  Term,  May,  1884. 

§§  481,  640. 
Void  or  irregular  attachment, — Action  for  damages  for. — Pleading. 

It  is  not  necessary  to  aver  malice  or  want  of  probable  canse  in  suing 
for  dam.Mgcs  sustained  by  the  levying  of  u  void  or  irregular  attacli- 
inent,  and  it  cannot  be  held  in  the  absence  of  sucli  allegations,  tiiat 
plaintiflTs  remedy  is  confined  to  the  undertaking  given  to  procuie 
the  attachment. 

An  action  may  be  maintained  if  the  attachment  be  irregular  only,  on 
proof  that  it  has  been  set  aside  ;  but  an  allegation  that  tlie  attach- 
ment was  "illegal,  unauthorized  and  void,"  being  a  conclusion  of 
law,  is  not  sufficient  to  admit  i>roof  that  the  attachment  was  void. 

{Decided  May  15,  1884.) 

Demurrer  to  complaint. 

Action  for  damages  sustained  by  the  issuing  of  a 
void  attachment  and  levy  the.-eur.to  by  the  sheriff  in 
an  action,  in  the  supreme  court,  by  these  defendants  as 
plaintiffs  against  this  j-laintiff  and  others  as  defend- 
ants, to  charge  tliem  with  liability  for  the  debt  of 
the  McKillop  &  Sprngue  Company,  of  which  it  was 
claimed  that  such  defendants  were  trnsiees.  Tlie  com- 
plaint alleges  the-above  matteis,  and  that  the  attach- 
ment w^as  vacated  and  set  nside  iii  snid  iiction,  and  :il- 
Icged  damages,  etc.  Defendtint  demurs  on  the  ground 
that  the  complaint  does  not  state  facts  suflicienL  to 
constitute  a  cause  of  action.  He  urges  that  there  can 
be  no  action  except  for  malicious  prosecution,  and  that 
in  the  absence  of  malice  an  action  can  only  be  main- 
tained on  the  undertaking  given  to  procure  the  attach- 
ment. 


'OrVTL    PROCEDUEE    REPORTS.  37 

Sprague  v.  Pareons. 

W.  Z.  Lamed,  for  plaintiff, 
Gilbert  B.  Hawes,  toi  defeadants. 

J.  F.  Daly,  J. — TUe  complaint  is  sufBcient.  There 
is  no  need  to  aver  malice  or  want  of  probable  cause  in 
suing  for  damages  sustained  by  tlie  levying  of  a  void 
or  irregular  attacliment.  A  process  being  void,  the 
party  who  sets  it  in  motion  and  all  who  aid  him  are 
trespassers.  Kerr  v.  Mount,  28  JV.  T,  659  ;  Wehle  v. 
Butler,  61  Jd.  245  ;  Day  v.  Bach,  8?  Jd.  56;  see  also  in 
this  court,  Wehle  v.  Haviland,  42  How.  Fr.  39^ ; 
S.  C,  4  Daly,  550. 

The  action  may  be  maintained  if  the  process  be  ir- 
regular only,  on  proof  that  it  has  been  set  aside.  The 
complaint  avers  that  fact,  and  is  sufficient  in  such  an 
action.  But  the  rule  of  damages  may  be  different  in 
such  a  case  from  the  rule  in  case  of  an  absolutely  void 
attachment  (Day  v.  Bach,  above).  The  complaint  here 
is  not  good  as  a  pleading  in  an  action  of  the  latter  class. 
The  allegation  that  the  attachment  was  "illegal,  un- 
authorized and  void,"  is  a  statement  not  of  fact,  but  of 
a  conclusion  of  law  (Hammond  v.  Earle,  58  How.  Pr. 
437-8).  The  plaintiff  will  have  to  amend  if  he 
desires  to  prove  6n  the  trial  that  the  attachment  was 
void.  But  as  a  complaint  in  an  action  upon  an  attach- 
ment voidable  for  irregularity,  the  complaint  is  good 
because  it  avers  that  the  attachment  has  been  vacated. 

The  demurrer  is  therefore  overruled,  with  costs. 
Leave  to  defendant  to  answer  on  payment  of  costs. 


28  CIVIL    PROCEDURE    REPORTS. 


Livingston  v.  Monissey, 


,      LIVINGSTON,  Respo.ydent,  v.  MORRISSEY, 
Appellant. 

County  Court,   Onondaga   County,  Makch,  1884. 

§  2966. 

Jxistiee'a  court.—  Depositions  taken  on  adjourning  case. 

In  an  action  in  a  justici.''s  court,  testimony  taken  under  section  2966 
of  the  Code  before  trial   will  not   warrant  or  sustafn  a  judgment 
unless  it  is  ofTered  and  read  in  evidence. 
■  {Decided  July  17,  1884.). 

Appeal  from  a  judgment  rendered  by  a  justice  of 
the  peace. 

This  action,  was  brought  to  recover  on  contract, 
before  a  justice  of  tliH  [)eace  in  the  oily  of  Syracuse. 
On  December  24,  1883,  the  return  day  named  in  the 
summons,  both  parties  appeared  before  tlie  justice  ; 
the  defendanr  answered,  and  asked  for  an  adjournment 
for  two  weeks.  The  plaintiff  being  a  non-resident  of 
tlie  country  asked  that  her  deposition  and  that  of  a 
witness  who  appeared  in  her  behalf  be  taken  under 
section  290G  of  the  Code  of  Civil  Procedure.  Tlie  jus- 
tice granted  tlie  adjournment  upon  condition  tliat  the 
defendant  file  an  undertaking;  ordered  such  deposi- 
tions to  be  taken,  and  adjourned  the  case  two  days.  On 
Decendier  26,  both  i)arties  a[)peared  before  the  jusfi(;e,i; 
tiie  defendant  lih^l  the  required  undertaking  and  thei 
depositions  were  taken.  The  dei'endant  objected  to 
tlie  taking  of  the  plain tifPs  deposition  on  the  ground 
that  the  statute  did  not  i)ermit  the  plaintiff  to  liave 
her  deposition  taken  at  her  own  instance,  but  his  ob- 
jection was  overruled,  and  her  de[)osition  was  taken. 
The  justice  passed  upon  objections  taken  by  counsel 


CIVIL    PROCEDURE    REPORTS.  29 

Livin^Tston  v.  Morrisscy. 

to  questions  asked  on  both  the  direct  and  cross  exami- 
nations. 

The  justice's  term  of  office  subsequently  expired, 
and  the  case  was  tried  before  another  justice,  January 
7,  1884,  who  gave  judgment  in  favor  of  the  plaintiff  for 
§41  damages  and  $6.92  costs.  The  only  evidence  offered 
on  the  trial  was  that  of  one  Barney  H.  Demarest  taken 
under  a  commisson,  and  his  evidence  was  insufficient 
to  warrant  the  judgment.  The  depositions  taken  on 
the  adjournment  were  neither  read  nor  offered  in  evi- 
dence and  the  defendant  did  not  put  in  any  evidence 
but  rested  upon  his  motion  for  a  non-snit. 

The  phiintitt'  contended  that  the  justice  could  con- 
sider the  depositions  taken  before  trial  without  the 
same  being  read  or  offered  in  evidence. 

William  M.  Morrlssey  and  P.  W.  Hogan^  for  apel- 
lant. 

The  justice  before  whom  the  depositions  of  the 
plaintiff  and  her  witness  were  taken,  had  no  right  to 
rule  upon  questions  of  evidence.  See  Hewlett  »,  Wood, 
67  N.  Y.  399.  The  justice  erred  in  considering  the  de- 
X)Ositions  without  the  same  being  offered  and  read  in 
evidence. 

William  P.  Gavnon,  for  repondent. 

NoRTiiiJUP,  J. — Judgment  reversed. 


80  CIVIL    PROCEDURE    REPORTS. 


Frist  V.  Cliium. 


FRIST  ET  AL,  V.  CLIMM. 

City  Coubt  of  New  York,  Special  Term,   July. 

1884. 

§§  523,  529. 
Verijication  to  answer. — Wfien  may  h$  omitted. 

Where  a  complaint  set  out  a  sale  of  goods  by  plaintiff  to  defendant 
induced  by  the  alleged  false  and  fraudulent  representation  of  the 
defendant  and  asked  judgment  for  the  contract  i)rice: — JJeld^  that 
tlie  defendant  had  a  right  to  serve  an  unvuriRed  answer. 

Section  529  of  the  Code, — which  provides  thntti  defendant  is  not  ex- 
cused from  verifying  his  answer  to  a  complaint  charging  him  with 
having  confessed  or  suffered  a  judgment,  or  executed  a  conveyance, 
assignment  or  other  instrument,  or  transferred  or  delivered  mone> 
or  personal  property  with  intent  to  hinder,  delay  or  defraud  credi- 
tors, or  with  b<-ing  a  party  or  privy  to  such  a  transaction  by  another 
person,  with  like  intent  toward  tlie  creditors  of  that  person ;  or 
with  any  fraud  whatever  affecting  a  rigiit  or  the  jjroperty  of 
anotlier, — is  aimed  solely  at  frnufluicnt  transfers  and  the  like,  but 
in  other  actions  in  which  the  defendant  is  charged  with  crimes  or 
misdemeanors  he  may  serve  his  answer  unverified. 

In  an  action  for  obtaining  goods  under  false  pretenses  the  defendant 
need  not  verify  his  answer. 

(Decided  July  12,  1884.) 

Motion  that  the  plaintiff's  attorney  be  compelled  to 
receive  an  unverified  answer  served  by  the  defendant. 

Sufficient  facts  are  stated  in  the  opinion. 

Henry  WeJile^  for  the  motion. 

Otio  HormtZy  opposed. 

McAdam,  Ch.  J. — The  complaint,  which  is  verified, 
after  alle'2;ing  a  sale  and  delivery  of  certain  goods  to 
the  defendant,  avers  that  the  defendant  was  guilty  of 


CIVIL    PROCEDURE     REPORTS.  31 

Frist  V.  Climm. 

fraud  in  contracting  the  liability  and  then  sets  out  in 
detail  specific  misrepresentations  to  indnce  the  credit 
given,  and  tliese  are  stated  as  the  acts  of  fraud  com 
plained  of.  The  defendant  served  an  unverified  an- 
swer, claiming  that  under  section  523  of  the  Code  the 
verification  may  be  omitted  whenever  the  party 
"^  would  be  privileged  from  testifying  as  a  witness  con- 
cerning the  matters  alleged."  The  rule  is  that  a  wit- 
ness is  not  required  to  give  any  answer  which  will  have 
a  tendency  to  accuse  him  of  any  crime  or  misdemeanor 
or  to  expose  him  to  any  penalty  or  forfeiture ;  nor 
when  by  answering,  a  link  may  be  added  to  the  chain 
of  testimony  tending  to  such  a  result.  Code  §  837  ;  2 
Phillips  Ed.^  Cowen,  Hill  &  Edwards''  Notes,'  929  ; 
Henry  v.  Salina  Bank,  1  J7.  Y.  83  ;  S.  C,  3  Den.  593; 
1  How.  A'pp.  Cas.  173  ;  Wheeler  n.  Dixon,  14  How.  Pr. 
151.  The  allegations  of  the  complaint  in  effect  charged 
the  defendant  with  obtaining  goods  under  false  jire- 
tenses,  and  bring  the  case  directly  within  the  rule 
stated.  Where  any  part  of  the  pleading  is  of  such  a 
character  the  verification  may  be  properly  omitted. 
3  How.  Pr.  314  ;*  1  Code  R.  69  f  3  Abh.  Pr.  144  ;t  6 
Id.  148  ;:j:  14  Ahh.  Pr.  N.  8.  77  ;§  1  N.  Y.  83  ;I|  Consti- 
tution, Art.  1,  sec.  6  ;  12  How.  Pr.  319  ;*T  2  Hilt.  247  ;** 
24  How.  Pr.  869  ;tt  24  N.  Y.  74. i}^:  Section  529  of  the 
Code,  relied  on  by  the  plaintiff,  is  taken  from  the  2 
B.  S.  174,  and  Laics  1883,  ch.  14,  sec.  1,  and  does  not 
apply.     That  section  provides  that  "a  defendant  is 

♦  Clapper  v.  Fitzputrick. 
t  Blaisciell  v.  Raj'mond. 
I  Blaisdell  v.  Ravmond,  aff'd. 
§  Fredericks  v.  Taylor. 
II  Henry  v.  Salina  Bank. 
^  Scovill  V.  New. 
**  Moloney  v.  Dows. 
tt  People  V.  Kelly. 
XI  In  re  Hockley. 


32  CIVIL    PROCEDUllE    REPORTS. 

Frist  V.  CliiTim. 

not  excused  from  verifying  his  answer  to  a  complaint 
charging  him  with  having  confessed  or  suffered  a  judg- 
ment, or  executed  a  conveyance,  assignment  or  othor 
instrument,  or  transferred  or  delivered  money,  or  per- 
sonal property  with  intent  to  hinder,  delay  or  defraud 
creditors,  or  being  a  party  or  privy  to  sucli  a  tinnsiic- 
tion  by  another  person  with  lilie  intent  tr)wnr(l  the 
creditors  of  that  person  ;  or  with  any  fraud  whatever 
affecting  a  riglit  or  the  property  of  another."  It  is  not 
claimed  that  any  but  the  latter  portion  of  this  section 
applies  to  this  case,  the  preceding  merely  refer! ng  to 
confessed  judgments,  fraudulent  conveyances,  and  the 
like.  The  words  "or  any  fraud  whatever,  affecting  a 
right  or  the  property  of  another,  which  are  claimed  by 
the  i)laintiff  as  applicable,"  probably  mean  ''al'ecring 
the  property  of  another  or  some  light  suscept.i  je  of 
injury  by  the  fraud."  If  these  words  mean  anything 
more,  it  is  difficult  to  imagine  a  case  of  fraud  to  which 
section  529  does  not  apply,  and  impossible  to  find  one 
to  which,  section  523  can  be  made  applicable.  Every 
action  is  founded  on  the  invasion  of  some  right,  but 
that  circumstance  does  not  alone  necessarily  bring  the 
case  within  the  purview  of  section  ,020  which  is  ain)ed 
solel}-  at  fraudulent  transfers  and  the  like,  in  lefeivnce 
to  wliich  the  defendant  is  not  excused  from  answeiing 
under  oath  the  charges  of  fraud  made  against  liim  in 
t\}e  bill  of  complaint.  But  i-n  other  actions  in  which 
the  defendant  is  charged  with  crimes  or  misdemeanors 
he  may  avail  himself  of  section  523  and  serve  his  an- 
swer unverified.  Effect  cannot  be  given  to  both  sec- 
tions except  by  holding  that  section  523  contains  the 
general  rule  in  regard  to  such  verifications  and  that 
sectitm  520  contains  the  exceptional  one  applical)le 
only  to  the  cases  therein  enumerated.  Ilow  far  a  wit- 
ness may  bo  obliged  to  testify  in  respect  to  the  excep- 
tional matters  need  not  be  considered  as  that  is  not 
made  the  test.    In  all  other  cases  it  is. 


CIVIL    PROCEDURE    REPORTS.  33 

Meliesy  v.  Kahn. 

In  the  present  instance  the  plaintiffs  imrted  with 
all  their  property  in  the  goods  at  the  time  of  the  sale. 
The  action  is  to  recover  the  contract  price.  Fraud  is 
alleged  as  the  inducing  cause  of  the  sale  for  the  pur- 
pose of  obtaining  a  judgment  in  a  form  in  which  the 
defendant  ma}''  be  made  liable  to  arrest.  But  this  does 
not  make  the  action  one  afTecting  "a  right  of  another'' 
wiihin  the  meaning  of  that  term  as  used  in  section  o29. 

Ii;  follows  that  the  defendant  had  the  right  to  serve 
an  unverified  answer,  and  that  the  motions  to  compel 
the  plaintiff  to  accept  it  must  be  granted. 


MEHESY,  Appellant,  v.  KAHN,  et  al.,  Respond- 
ents. 

Superior  Court,  General  Term,  March,  1884. 
§§  803,  et  seq.    . 

Oi'der  for  inspection  ofhoolcs^  etc. —  Wlien  granted. 

Tlie  granting  of  power  to  serrch  through  th3  books  of  account  to  find 
isolated  entries  not  particul.r.ized,  to  enable  plaintiff  to  frame  h.t 
complaint,  rests  in  the  discretion  of  the  court,  and  it  should  onit 
be  allowed  where  the  purpose  and  necessity  of  such  examination  an 
!il)parent. 

Acooidingly,  where  in  an  application  for  an  order  to  examine  defend- 
Jinfs'  books  to  ascertain  the  names  of  persons  to  whom  defendanti 
liad  sold  certain  merchandise  in  contravention  of  their  agreement 
to  sell  only  to  pluintiff,  in  order  to  enable  plaintiff  to  frame  his 
complaint,  the  petition  alleges  that  defendants  did  so  sell  to  other 
piisons: — IhlJ,  that  the  application  should  not  be  granted;  that 
the  knowledge  or  information  which  enabled  plaintiff  to  make  this 
distinct  and  definite  statement,  was  enough  to  enable  plaintiff  to 
frame  her  complaint. 

{Decided  M<nxh  21,   1884.) 
Vol.  VI.— 3 


34  CIVIL    PROCEDURE    REPORTS. 

Meliesy  c.  Kjvlin. 

Appeal  from  ord<^i'  <»f  .-^pecial  ferm  denying  petition 
of  plninfifF  lor  insi)ection  and  copy  of  entries  in  ac- 
count books  of  defendants  in  older  to  ascertain  the 
names  of  the  persons  to  whom  defendants  liad  sold 
"  hare  bellins,"  in  violation  of  their  agreement  witli 
the  plaintiff,  and  in  order  to  enable  the  plaintiff  to 
frame  her  complaint. 

Simpson  &  Werner,^  for  appellant 

The  discovery  sought  is  material  and  neces- 
sary, and  in  the  present  case  absolutely  indispens- 
able. 1.  Its  materiality  appears  by  reference  to. the 
written  contract.  The  defendants  contracted  to  give 
their  entire  product  of  bellies  during  the  peiiod 
mentioned,  and  that  they  did  not  do  so  is  shown  by 
the  petition  presented.  2.  Its  necessif}'  is  siiown 
by  the  allegations  that  the  names  and  amounts 
are  recorded  in  the  books  named,  during  the  i)erio(l 
designated,  and  that  the  petitioner  "has  no  nR-ans 
whatsoever,  outside  of  said  books,  of  discovering 
or  determining  the  amount  of  hare  bellies  which 
the  defendant  had  or  obtained,  or  parted  with  and  sold 
and  delivered  to  parties  other  than  your  petitioner,  and 
in  violation  of  the  contract,"  and  this  after  the  positive 
averment  that  the  defendants  did  sell  and  deliver  to 
other  parties  in  violation  of  the  contract.  The  i)laint- 
iff  cannot  possibly  prei)^re  a  complaint,  and  truthfully 
verify  it,  as  required  by  statute,  without  a  disclosure, 
and  if  a  complaint  were  by  any  possibility  framed  and 
served,  the  cause  of  action  could  be  ivadily  defeated 
by  an  ai)plication  on  the  part  of  the  defendants  for  a 
bill  of  particulars. 

Benno  Loewy,  for  respondent. 

O'GoiiMAx,  J. — There  are  many  reasons  why  the 
decision  of  the  special  term  should  not  be  disturbed. 
The  granting  the  order  applied  for  was  very  much 


(^IVIL    PROCEDURE'  REPORTS.  35 

■  fi  •  I  .  - ,,...,.,■ 

j\Ielic'sy  <o.  Kalin. 

within  the  discretion  of  that  court,  and  we  see  no  rea- 
son to  believe  that  such,  discretion  was  npt  properly 
exercised  in  this  instance. 

The  phiinrilF  states  in  her  verified  petition,  that  the 
defendants  did  sell  largely  to  other  persons,  and  offer- 
ed her  the  refuse  after  such  sales  of  the  best  material. 
'If  she  is  possessed  of  knowledge  or  information  suffi- 
cient to  enable  her  to  make  this  distinct  and  definite 
statement  under  oath,  there  can  be  no  diffculty  in 
framing  a  comx)laint  calling  for  a  definite  verified 
answer  to  that  allegation. 

The  power  to  search  through  the  defendants'  account 
books  in  order  to  find  isolated  entries,  not  particular- 
ized, to  enable  the  plaintiff  to  frame  a  complaint,  is 
open  to  great  abuse  and  should  only  be  granted  where 
the  purpose  and  necessity  of  such  examination  are 
apparent.  At  a  later  stage  of  the  proceedings,  when 
the  issues  between  X)laintiff  and  defendants  shall  have 
been  developed,  other  api^ropriate  measures  can  be 
taken  by  the  plaintiff  to  obtain  the  information  now 
sought,  if  it  be  found  to  be  then  necessary. 

The  order  api)ealed  from  is  aflirmed,  with  ten  dol- 
lars costs. 

Sedgwick,  Ch.J.,  and  Fkeedman,  J.,  concurred. 


86  CIVIL    PROCEDURE    REPORTS. 


Stiohn,t).  Epstein. 


STROHN,  ET  AL.  V.  EPSTEIN,  et  al. 

City  Court  of  New  York,  Special  Term,  July, 

1884. 

§  2464. 

JUeeiver  in  mipjylerMntary  proceedinffs — Notice  of  application  for,  wlten 

neceamry. 

At  least  two  chiys'  notice  of  an  application  for  the  appointment  of  a 
receiver  in  suppicnKntaiy  proceedings  must  be  given,  in  every  case 
except  where  tiie  application  is  made  on  the  return  day  of  ihc 
order  or  warrant  or  npon  the  close  of  the  examination.  [']  Fail- 
ure to  give  snch  notice  is  an  irregularity  for  which  the  order  should 
be  set  aside.  ["] 

Where  upon  the  conclusion  of  an  examination  of  one  of  two  judg- 
ment debtors  before  a  referee,  in  proceedings  supplementary  to 
execution  on  a  judgment Tccovered  for  a  copartncrsliip  d'.bt,  and 
upon  filing  the  testimony  talicn  before  the  referee  a  receiver  of  the 
property  of  the  debtors  was  appointed  without  notice  to  them  : — 
Held,  that  tlio  order  must  be  set  aside,  [']  and  could  not  be  con- 
firmed;  [*]  also  Udil,  upon  proof  that  no  other  supplementary  pro- 
ceedings or  judgment  creditors' actions  against  the  debtors  were 
pending,  and  uptm  due  notice  of  the  a[)pli(;atioM  tlierefor  that  a 
receiver  of  their  property  should  i>e  api)oiuted.  [*J 

(Decided  July  2b,  1884.) 

Motion  by  defendants  tlint  an  order  appointing  a 
receiver  of  their  pro[)erty  be  vacated  and  set  aside. 

Tile  plaintilf  recovered  a  judgment  in  this  court 
against  t lie  defendants  wlio  are  copartners,  and  after 
tile  return  of  an  exncuiion  against  their  property  pro- 
cured an  order  requiring  the  defendant,  Cluirles  F. 
nine,  to  attend  before  a  referee  and  subinit  to  an  exjim- 
ination  as  to  his  property  in  prj)ceedings  supplemen- 
tary to  execution. 


CIVIL    PROCEDURE    REPORTS.  37 

Strohn  v.  Epstein. 

He  did  so,  and  the  referee  in  due  course  re})orted 
the  testimony  to  a  judge  of  this  court  who  thereupon 
without  any  notice  having  been  given  to  the  defend- 
ants appointed  a  receiver.  This  receiver  accepted  the 
trust  and  thereafter  duly  qualified.  The  defendants 
subsequently  made  this  motion.  Itappeared  that  both 
the  defendants  were  residents  of  tliecity  of  New  York  ; 
that  neither  had  notice  of  the  application  and  that  the 
defendant  Epstein  had  never  been  examined  in  supple- 
mentary proceedings. 

Arnoux^  Rltch  &  Woodford^  for  the  motion. 

Billings  &  Cardozo,  opposed. 

McAdam,  Ch.  J. — M}'- interpretation  of  section  2464 
of  the  Code  is  that  u[)on  the  leturn  day  of  the  order  or 

warrant  served  in  supplementary  proceedings  or 
[']     upon  the  close  of    the   examination,  on  both  of 

which  days  the  defendant  is  supposed  to  be  present 
in  person  or  by  attorney,  an  application  "  without 
further  notice"  may  be  made,  then  and  there,  for  the 
appointment  of  a  receiver.  But  if  the  proceedings  are 
had  before  a  referee  and  not  before  a  justice  of  tlie 
court,  "  at  least  two  days'  notice  of  the  application  for 
the  order  must  be  given"  in  the  manner  provided  by 
said  section.  In  other  words,  that  section  was  not 
designed  to  do  away  with  the  former  notice  required 
under  the  old  Code,  excepting  in  the  two  instanc-es 
stated,  when  the  defendant  was  supposed  to  be  in  court, 
personal!}^  or  by  legal  representative,  on  which  occa- 
sions a  motion  then  and  there  was  made  to  dispense 
with  "further  notice." 

The  examination  herein  was  had  before  a  referee, 
and  upon  its  conclusion  the  report  and  evidence  were 
filed  and  on  the  following  day  a  receiver  was  appointed 
without  notice. 


38  CIVIL    PROGEDURE    REPORTS. 

Strohn  «.  Epstein^ 

This  was  irregular  practice  for  which  the  order 
[*]    must  be  set  aside.     See  22  Hun,  226.* 
No  costs. 

At  the  same  time  that  the  motion  to  vacate  the 
order  appointing  receiver  was  made  the  following 
motion  was  argued. 

Motion  by  plaintiff  for  order  confirming  order  ap- 
pointing receiver  or  for  an  order  appointing  Daniel  P. 
Hays  such  receiver  nunc  pro  tunc,  or  for  an  order 
appointing  some  suitable  person,  receiver  of  the  per- 
sonal and  real  property  of  the  defendants  Epstein  and 
Hine,  and  of  the  iirm  of  Epstein  &  Hine. 

This  motion  was  made  upon  a  regular  four  daj^s' 
notice  of  motion,  and  was  accompanied  by  an  affidavit 
showing  that  no  other  supplementary  proceedings 
against  the  defendants  were  pending  ;  that  no  receiver 
of  their  property  had  been  appointed  and  that  no 
action  specified  in  article  first,  title  4,  chapter  15  of  the 
Code  of  Civil  Procedure  (judgment  creditors*  actions) 
were  pending. 

Further  facts  are  stated,  supra. 

Billings  &  Cardozo^  for  the  motion. 

Arnoux^  Rltch  &  Wood/ord,  opposed. 

McAdam,  Ch.  J. — The  decision  on  the  defend- 
[*]     ants'    motion  to  vacate  l-eqiiires  me  to  deny  the 
plaintiffs  application  to  amend. 

The  application  to  appoint  a  receiver,  however, 

[*]     must  be  granted.  The  notice  of  motion  sj)eci(ica!ly 

asks  for  this  relief.    See  Code,  ^§  1032,  1934,  2101  ; 

Clark  V.  Clark,  11  Abb.  N.  C.  333  ;  Perkins  /;.  Kendall, 

3  N.  Y.  Cio.  Fro.  240,  and  cases  cited. 

The  parties  may  agiee  upon  the  ])erson  to  be  ap- 
pointed, or  in  default  thereof  I  will  name  the  person. 

*  Sup.  Cl.  3  Dej^t.y  Ashley  ».  Tuiuer. 


CIVIL    PROCEDURE     REPORTS. 


Henderson  v.  Scott. 


HENDERSON,  Respondent,  v.  SCOTT,  Appellant. 

SuPKEME  Court,  Fourth  Depauiment,  General 
Term,  January,  1884. 

§^500,  1515,  153J. 

Pleading — Former  recovery  wlien  to  he  jileaded. — Damages  on  recovery  of 
real  jjroperty  in  ejectment — Ouster —  Wliut  amounia  to. 

Altliough  tlic  defense  of  <i  former  recovery  niny  liiive  been  admissible 
in  an  aciion  lor  mesne  \no&li^,  after  a  recovery  in  ejccinieut  prior  to 
tlie  Code,  since  tlie  Code  ii  must  be  specially  pleaded. ['J 

In  an  action  against  one  who  was  wrongluily  in  possession  of  real 
property,  to  lecovcr  the  wte^/'t'  protits  during  such  possession,  the 
defendant  is  not  eiititli;d  to  set  oil  improvements  made  alter  lie 
was  expressly  notified  of  liie  plaint  ill's  claim,  and  elainjed  to  hold 
in  exclusion  of  it.pj  and,  on  the  trial,  a  question  as  to  what  im- 
provements were  made,  whicii  was  not  limited  to  those  made  before 
that  time,  is  [jropeiiy  excluded,  [^j 

A  conveyaticc  of  llie  whole  of  real  i)roperty  held  in  common,  by  one 
of  two  co-tenants  to  a  grantee  who  claims  to  own  the  whole  under 
such  deed,  is  an  ouster  of  the  other  co-tenant.  [*] 

{^Decided  April,  1884.) 

Aiipenl  from  a  jiulgment,  on  a  verdict  rendered  at 
tlie  Oswego  coiuity  ciicuit,  and  from  an  order  denying 
a  motion  lor  a  new  tiial  on  the  minutes. 

Tlie  opinion  states  tiie  facts. 

•      B.  B.  cfc  G.  N.  Bart,  for  appellant. 

J.  A.  Baihaway,  for  respondent. 

S.MiTii,  P.    J. — Action   for  viesne  profits  or  rental 
vulne  of  real  estate,  after  nrovei  y  in  eject  nn^nt. 

The  complaint  alleoej  that  the  plaintill'  owned  in 
fee,  and  was  entitled  to  the  ])Ossession  of  one  undivided 
seventh  of  certain  lots  in  the  city  of  Oswego,  described 


40  CIVIL    PROCEDURE    REPORTS. 

Henderson  v.  Scott. 

in  the  complaint ;  that  the  defendant,  withont  the 
consent  of  the  phiinliff.  entered  into  the  possession  of 
the  snme  in  April,  180S,  and  lias  ever  since  occupied 
the  same,  and  received  the  rents  and  profits  thereof, 
which  were  of  the  yeaily  value  of  one  hundred  and 
fifty  dollars,  over  and  above  taxes  ;  and  that  in  1878, 
the  i>laintiff  commenced  an  action  in  this  court  against 
the  defendant  to  recover  the  possession  of  said  prem- 
ises, in  which  issue  was  joined  and  tried  before  a  re- 
feree,.and  the  plaintiflF  recovered  a  jndgment  decreeing 
that  she  was  the  owner  and  entitled  to  the  i)ossessiou 
of  said  premises,  and  that  she  is  now  in  the  possession 
of  the  same. 

The  defendant,  by  his  answer,  denied  the  com- 
plaint; and  pleaded,  first,  that  if  the  plaintiff  is  ihe 
owner  and  entitled  to  the  possession  of  said  jiremises, 
she  is,  and  has  been,  for  twenty  yeais,  snch  owner,  as 
tenant  in  common  with  the  defendant  and  those  from 
whom  he  derives  title,  his  share  being  six  undivided 
sevenths  of  said  lots  ;  and  secondly,  in  substance,  that 
the  defendant  and  tho^e  under  whom  he  claims  have 
made  i)ermanent  imj)rovHm(-'nts  on  said  lots  with  the 
consent  and  acquiescence  of  the  plaintiff,  exceeding 
in  value  the  amount  of  the  plaintiff's  claim,  which  they 
will  set  oft'  against  her  claim.  Some  other  defeujses 
were  set  up,  which  are  not  mateiial  to  the  questions 
involved  in  this  apiJcal. 

The  ])laintiff  replied  denying  the  alleged  counter- 
claim, and  ])leading  the  formei-  judgment,  and  also  the 
statute  of  limitations  in  bar  thereof. 

At  the  trial,  the  plaintiff  ])ut  in  evidence  the  judg- 
ment-roll in  the  former  action,  whit'h  showed  that 
such  action  was  commenced  in  January  1878,  and  that 
the  plaintiff  in  her  complaint  theiein  alleged,  among 
othei"  things,  that  the  defendant  wrongfully  occupied 
the  premises  about  lifleen  years,  and  duiing  that  time, 
without  the  plaintiff's  consent,  leceived  the  rents  and 


CIVIL    PROCEDURE    REPORTS.  41 

Henderson  v.  Scott. 

profits  tliei'eof,  which  were  of  the  yearly  value  of  fifty 
doUnrs,  and  that  in  her  complaint  she  demanded  judg- 
ment for  the  i)ossessi()n  of  the  premises,  and  also  for 
five  hundred  dcjllars  damages  lor  the  withholding  of 
the  same  as  above  stated.  The  defendant  denied  the 
withholding  of  the  possession,  and  that  she  hjid  re- 
ceived the  rents  and  profits.  The  record  also  showed 
that  the  referee  found,  among  other  things,  that  the 
defendant  went  into  possession  of  the  i^remises  in 
March,  1868,  and  had  ren)ained  in  possession  ever 
since,  and  that  the  rental  value  of  the  X)remises  was 
$120  per  year,  over  and  above  taxes  ;  and  that  the 
l^laintilf  was  entitled  to  recover  six  cents  damages  for 
withholding  the  premises,  and  was  not  entitled  to  re- 
cover any  portion  of  the  value  of  the  use  and  occufja- 
tion  of  the  premises,  because  not  claimed  in  the  com- 
plaint.    Judgment  was  entered  accordingly. 

The  defendant's  counsel  contended  at  the  trial,  and 
now  claims,  that  whether  or  not  the  referee  erred  in 
holding  that  the  plaintiff  was  not  entitled,  under  her 
complaint,  to  recover  for  the  value  of  the  use  and  occu- 
pation, the  judgment  is  a  bar  to  her  claim  to  recover 
therefor  in  this  action.  That  position  cannot  be  taken 
by  the  defendant,  for  the  reason  that  he  has  not: 
pleaded  the  judgment  in  bar.  The  defense  of  a  former 
recovery  may  have  been  admissible,  in  an  action 
[']  like  the  present  o.ne,  under  the  general  issue,  prior 
to  the  Code  (Young  o.  Rummt*ll,  2  /////,  478  ; 
Beebe  v.  Elliott,  4  Barb.  457)  ;  but  since  the  Code  it 
must  be  specially  pleaded  (Old  Code,  §  149  ;  New  Code, 
§  500;  McKyring  v.  Bull.  IG  N.  Y.  297,  307  ;  Brazill  v. 
Isham,  1  E.  D.  Snillh,  437:  S.  C,  affd,  12  N.  Y.  9; 
Hendricks  v.  Decker,  35  Barb.  298).  In  Brazil  v. 
Isham,  the  fact  of  the  award  of  arbitrators,  which 
was  claimed  by  the  defendant  to  be  a  bar  to  the  action, 
w^as  set  up  in  the  complaint,  as  is  the  former  judg- 
ment here,  but  it  not  having  been  pleaded  as  a  bar,  it 


42  CIVIL    PROCEDURE    REPORTS. 


Henderson  v.  Scott. 


was  held  that  the  defendant  could  not  insist  upon  it 
as  such. 

The  defendant  having  been  sworn  as  a  witness  in  his 
own  behalf,  his  counsel  put  to  hiui  the  following  ques- 
tion :  "Have  you,  since  you  have  been  in  iheijosses- 
sion  of  these  premises,  made  any  iiniu-ovements  on  the 
property  ?"  The  appeal-book  states  that  the  question 
having  been  objected  to  by  the  plaintiff's  counsel,  the 
trial  judge  said  :  "  That  question  can  be  laised  when 
they  fix  the  time,  of  course  it  must  be  what  improve- 
ments he  has  made  jn-ior  to  1878.  For  the  present,  I 
wdll  sustain  the  objection."  The  defendant's  counsel 
excepted  to  the  decision,  but  it  does  not  ap[)ear  that  he 
modified  the  question,  or  renewed  it  in  an}-  form.  The 
referee  found  in  the  former  suit  that  on  the  2d  of  Feb- 
ruary, 1878,  the  plaintiff  demanded  of  the  defendant 
one  undivided  seventh  of  the  i)remises,  and  the  de- 
fendant refused  to  give  her  possession  of  any  part, 
denied  her  right  to  any  j^ortion,  and  claimed  to  own 
the  whole.  The  defendant  was  not  entitled,  in 
{^]  any  view  of  the  case,  to  recover  for  imi^rovements 
made  by  him  after  he  was  express!}"  notilied  of  the 
plaintiff's  claim,  and  claimed  to  hold  in  exclusion  of 
it,  and  as  the  question  was  not  limited  to  improve- 
[*]  ments  made  before  that  time,  it  was  ja-operi}^  ex- 
cluded upon  the  ground  stated  by  the  court. 
The  only  other qiiestion  is,  whether  a!i  ouster  was 
shown.  The  defendant  proved  that  Owen  Henderson, 
who  originally  owned  five  undivided  sevenths  of  the 
premises,  as  a  tenant  in  common  wirli  the  piniiififf,  in 
3803  conveyed  the  entire  premises  to  one  Levaque, 
who  mortgaged  them  to  one  Atkinson,  and  on  a  fore- 
closure of  the  mortgage  they  were  conveyed  to  one 
Cummings,  and  that  in  March,  18G8,  Cummings,  with 
others,  conveyed  them  by  warranty  deed  lo  the  de- 
fendant. The  court  held  that  the  conveyance  of  the 
whole  by  the  co-tenant  Owen  Uenderson,  to  a  grantee 


eiVIL    PROCEDURE    REPORTS.  43 

t  Stephenson  v.  Hanson. 

•  who  claimed  to  own  the  whole,  under  his  deed, 
[*J  was  an  ouster  of  the  plaintiff  ;  and  so  are  the  au- 
thorities (Clapp  V.  Bromagham,  9  Cow.  530  ;  Flor- 
ence V.  Hopkins,  46  N.  Y.  182).  Atid  this  point 
was  adjudged  against  the  defendant  in  the  former  ac- 
tion, the  referee  having  found  that  in  March,  1868,  the 
defendant  went  into  possession  of  the  said  premises, 
claiming  to  own  the  whole  thereof  under  title  derived 
from  the  said  Owen  Henderson,  and  that  by  goinginto 
possession  after  taking  such  deed  and  claiming  to  own 
the  whole,  and  expressly  denying  the  j)laintiff's  right 
to  any  portion,  and  on  demand  refusing  to  yield  ]3os- 
session  of  any  portion,  he  had  subjected  himself  to  an 
action  by  the  plaintiff  to  recover  one  undivided  seventh 
of  said  j)remises. 

The  considerations  above  expressed  cover  most  all 
the  questions  raised  by  the  appellant's  counsel. 

The  judgment  and  order  should  be  affirmed. 

Hakdin  and  Barker,  JJ.,  concurred. 


STEPHENSON  v.  HANSON  ;— In  ee  Application 
OF  William  J.  Hanson. 

City  Court  of  New  York,    Special  Term,  June, 

1884. 

§§  14,  812. 

Contempt. — Whe7i    surety  to  undertaldng  guilty    of. — PunisJunent. — 

Effect  of  a2yi>eal  from  jmVjment  in  action  in  which 

undertahing  teas  given. 

A  surety  to  an  undertaking  who  falsely  swears  that  he  is  worth 
double  the  penalty  of  the  undertaking  is  guilty  of  perjurj',  whicli 
is  a  contempt  of  court,  p]  and  may  be  punished  therefor  by  a  fine 


44  CIVIL    PROCEDURE    REPORTS. 

StcpliensoD  c.  Hauson. 

sufficient  to  indemnify  tlie  dufouclant  for  tlie  loss  and  injury  lie  has 
sustained  thereby,  and  by  iraprisoning  him  for  six  montlis  and  until 
the  tine  is  paid.['] 

In  Mu  li  casi',  wliore  the  uiidertalcing  was  given  on  procuring  an  order 
<>f  arrest,  the  sureties*  liability  becomes  fixed  upon  tiic  date  of  the 
final  vacating  of  the  order  of  arrest,  and  tlie  fact  tiiat  an  appeal 
lias  been  takeu  from  the  judgment  in  the  original  action  by  the 
plaintifT  therein  is  therefore  unmat('rial.[*] 

The  power  to  punish  for  contempt  is  a  branch  of  the  common  law, 
adopted  and  sanctioned  by  the  constitution  of  this  state.  [■*] 

Instance  of  a  case  in  which  a  surety  on  an  undertaking  was  guilty  of 
perjury.  [>,  «J 

{Decided  July  28,  1884.) 

Motion  to  punish  snrety  for  contempt  in  swearing 
falsely  as  to  his  pecuniary  responsibility. 

John  Kolfer  was  a  surety  upon  an  nndejtaking,  on 
wliich  an  ortler  of  arresr  was  gi anted,  in  a  certain  ac- 
tion in  wliicii  this  applicant  was  tlie  deleiulant,  and 
one  Ste[)lienson  the  plainiilf  ;  the  order  of  arrest  there- 
in wiis  vnctjied. 

Judgment  was  subsequently  recovered  by  Hanson 
agninst  tiie  surety  Kolter,  for  the  sum  of  8*281.05, 
dam.-iges  and  costs,  sustained  by  reason  of  his  ariest. 

In  that  action  the  defendant  was  examined  as  to 
his  ])roperty,  ii[)on  the  return  of  execution  wholly  un- 
satisfied, and  upon  the  facts  disclosed  this  motion  is 
made. 

Further  facts  are  stated  in  the  oijinion. 

William  B.  Tallls,  for  the  motion. 

J.  C.  J.  Langhein,,  opposed. 

Hyatt,  J. — It  is  conceded  that  on  June  9,  1883, 

the   surety   Kolter    signed   an    undertaking,    in    the 

usual  form,  as  surety  ujion  an  order  of  arrest  in 

[']     the  action  of  Stephenson  v.  Hanson  ;  Hanson  al- 


CIVIL    PROCEDURE    REPORTS.  45 

Steplieiison  v.  Hanson. 

leges  that  he  also  justified,  by  swearing  that  he  was 
worth  $500  over  and  above  all  his  debts  and  liabilities; 
the  surety  deposes,  upon  his  examination  as  a  judg- 
ment debtor  in  the  action  of  Hanson  v.  Kolter,  that 
although  he  signed  and  executed  the  instrument  "  he 
did  not  go  before  any  notary  upon  that  bond,  and 
did  not  swear  to  the  affidavit  therein  ;  that  he  signed 
his  name  and  went  away  without  reading  the  docu- 
ment"; but  even  if  this  statement  is  true,  heat  the 
same  time  deposed,  that  in  the  same  action  "  he  signed 
a  second  undertaking,  marked  filed  July  20,  1883  ; 
that  he  signed  the  affidavit  of  justification  therein,  in 
the  office  of  a  lawyer  and  notary  j^ublic,  without 
reading  or  having  it  read  to  him,  and  supposes  that 
he  must  have  sworn  to  that  affidavit  before  the  notary 
public  ;  that  he  has  been  watchman  and  housekeeper 
since  May  1884,  and  prior  to  that  time  was  a  repairer 
of  billiard  tables  ;  that  he  is  married  and  supi)orts  a 
family  ;  that  he  is  not  and  was  not  prior  to  June  6, 
1884  (date  of  the  order  for  his  examiiuition  as  a  judg- 
ment debtor),  worth  anything  or  possessed  of  nny  proj)- 
erty,  real  or  personnl,  or  of  nny  riatuie  whiitsoever, 
except  household  furniture  exempt  from  execution  ; 
that  he  has  no  money  except  $C.00in  the  bank,  and 
hns  had  no,  other  money  in  the  bank  for  over  a  year 
last  past." 

He  further  deposes  positively,  "I  have  been  in  no 
better  positicjn  pecuniinily,  during  more  than  a  year 
last  past,  ex(;ept,  that  1  acquired  in  the  Spring  of  1883 
a  contingent  interest  in  two  second-hand  billiard  tables, 
wilh  another,  p:iying860  apiece,  slinre  and  share  alike, 
as  i)ait  owner  ;  in  October  1883,  I  wns  paid  $75  for  my 
intei'est  ;  we  advertised  them  for  sale  and  was  not 
offered  any  price  for  them,  but  think  we  could  sell 
them  for  about  $175  apiece  ;  I  desire  to  state  nothing 
to  my  foregoing  testimon3^" 

The  examination   was  subscribed  and   sworn    to 


46  CIVIL    PROCEDURE    REPORTS. 

Steplienson  v.  Hanson. 

(after  having  been  read  to  him)  by  the  said  jiidgrrient 
debtor  June  9,  1884.  • 

Upon  the  17rh  of  June,  1884,  his  examination  wns 
Continued.  He  then  deposed  as  follows  :  "Upon  my 
former  examination  I  was  not  represented  by  counsel, 
as  I  am  now ;  I  reside  at  111  Filth  Avenue,  New  York 
City  ;  I  am  watchman  and  housekeeper  at  that  place 
for  August  Belmont ;  I  have  been  with  him  as  watch- 
man fourteen  years  ;  when  I  was  examined  before,  I 
thought  that  reference  was  only  made  to  my  property 
in  this  city,  when  asked  about  my  property  ;  1  own 
three  lots  of  ground  in  Cook  county,  Illinois,  near 
Chicago ;  I  got  them  from  Thomas  Back,  to  whom  I 
loaned  $100  ;  I  produce  the  deed  he  gave  me  ;  he  hns 
never  paid  any  part  of  the  loan  ;  the  date  of  the  loan 
•was  February  23,  1878  ;  he  was  to  return  it  March 
23,  1878  ;  I  have  paid  taxes  ever  since  ;  it  is  free  nnd 
clear  of  incnmbiances  ;  in  the  j'ear  1878  those  lots 
Were  worth  SI, 300,  and  they  have  increased  in  value 
since;  I  have  seen  Mr.  Back  since,  he  said  he  had  no 
money,  could  not  pay  me,  and  was  sorry,  that  I  could 
keep  the  lots,  that  his  wife  was  dead  and  he  never 
could  pay  me  ;  the  billiard  tables  are  worth  $250 
apiece  ;  I  did  not  read  the  undertakings  when  I  signed 
them,  they  were  not  explained  to  me  and  I  did  not 
know  what  they  were  ;  when  I  signed  the  undertak- 
ings, I  considered  myself  worth  double  the  amount 
therein  mentioned,  and  do  so  now^" 

Upon  his  cross-examination  he  testified  :  "I  knew 
I  was  signing  undertakings,  naturally  enough  I  knew 
when  T  signed  tliem,  I  must  be  worth  some  hundreds 
of  dollars  ;  I  was  born  in  New  York  City  ;  went  to 
primary  school,  also  night  school  ;  I  can  it-ad  ;  1  have 
taken  no  proceedings  to  perfect  title  under  the  det^d, 
I  don't  know  where  the  grantor  is,  have  not  seen  him 
for  a  year  last  past ;  I  paid  taxes  all  along,  thej'early 
taxes  are  two  dollars  and  some  cents,  never  saw  the 


€TVTL     PROCEDtTRE    REPORTS.  47 

Steplunson  v.  Hanson. 

lots,  my  idea  of  their  value  is  derived  from  tlie  con- 
sideration stated  in  Cumming's  deed  to  Back  ;  I  donH 
know  whether  the  lots  are  improved  or  not.  nor  how 
far  they  are  from  Chicago  ;  I  have  heard  that  their 
n^alue  was  more  than  SI, 300." 

After  a  careful  examination  of  Kolter's  testimony 
as  thus  fully  set  forth,  I  cannot  reconcile  its  many  in- 
consistencies of  statement,  and  fail  to  find  either  ex- 
pense or  justification  for  the  positive  contradiction  of 
facts,  sworn  to  by  the  judgment  debtor  upon  his' first 
examination, 

Kolter  is  an  intelligent  man,  has  had  some  school- 
ing, his  occupation  calls  for  the  possession  of  judgment 
and  the  exercise  of  shrewdness,  it  would  naturalj'y 
suri'ound  him  by  associations  tending  to  increase, 
rather  than  diminish,  those  faculties,  and  certainly, 
in  some  degree,  to  impress  him  with  a  sense  of  respon- 
sibilitj'-  for  his  acts  ;  he  knew  what  an  undertaking 
was  and  the  obligation  it  imposed,  that  on  each  occa- 
sion he  had  signed  the  undertaking,  and  upon  one  At 
least,  the  affidavit  of  justification;  he  claims  he  did  not 
swear  to  the  first,  but  supposes  he  did  to  the  second, 
before  the  notary  present ;  yet  upon  his  direct  exam- 
ination, June  17,  1884,  he  swore  "  I  did  not  read  the 
undertakings  when  I  signed  them,  and  did  not  know 
what  I  was  signing  f  and  then  upon  his  cross-examin- 
tion  he  swore  "■  that  it  entered  into  his  mind  what  he 
he  v/as  worth,  at  the  time  he  signed,  because  he  then 
knew  he  was  signing  undertakings,  and  that  naturally 
enough  he  knew  when  he  signed,  he  must  be  worth 
hundreds  of  dollars." 

On  the  first  examination  it  appears,  that  his  occu- 
pation as  night  wa  tchman  and  housekeeper  commenced. 
May  1884,  and  that  he  had  not  owned  any  property 
within  a  year  except  a  half  interest  in  two  second  hand 
billiard  tables,  for  which  he  accepted  875,  although  he 
thought  they  could  be  sold  for  $175  apiece,  notwith- 


iS  CIVIL    PROCEDURE    REPORTS. 

St(-])lieuM)n  V    II:iiiSi>n. 

Standing  they  had  been  advertised  and  no  offer  re- 
ceived lor  them. 

On  his  second  examination  he  testified  that  liis 
occupation,  as  formerly  sworn  to,  liad  existed  for  the 
past  fourteen  years,  and  that  the  said  tables  were 
wortli  $250  apiece. 

The  judgment  debtor's  explanation,  of  his  contra- 
dictory statements,  made  at  the  two  examinations,  is 
insufficient,  and  under  all  the  circumstances,  incn-d- 
ible.  I  cannot  believe  that  on  his  first  examination  he 
was  puzzled,  or  thought  that  the  exnmining  counsel 
referred  only  to  i)roperty  in  (he  city.  AVheri  asked  as 
to  his  real  and  personal  property,  he  positively  stated 
that  he  was  not  worth  anything  or  possessed  of  real 
or  personal  property  of  any  nature  whatsoever,  except 
what  he  expressly  claimed  was  exemi)t  from  execution 
(household  furniture);  that  he  had  been  in  no  better 
position  (June  9,  1884)  for  more  than  a  j^ear  last 
Xjast,  nor  within  that  time  owned  or  been  possessed  of 
any  other  property  except  the  billiard  tables.  It  is 
probable  that  it  occuried  to  the  mind  of  the  judgment 
debtor,  that  on  the  19th  of  July,  1883,  he  had  executed 
an  undertaking,  upon  an  order  of  arrest  and  had  sworn 
to  the  affidavit  of  justification,  ann(»xed  thereto,  to  the 
effect  that  he  was  wortli  $oO()  over  and  above  all  his 
debts  and  liabilities  ;  whereupon,  at  the  second  exam- 
ination, he  admitted  the  ownership  of  three  lots  of 
ground  in  Illinois,  conveyed,  together  with  a  gold 
watch,  by  one  Back  and  wife  to  secure  a  loan,  from 
liim  to  them,  of  $100,  February  23,  1878,  and  that  the 
loan  had  never  been  paid  ;  that  he  had  seen  ]»ack  a 
j'ear  ago,  who  told  him  that  he  could  not  pay  and  that 
he  could  keep  the  lots;  he  then  further  testified  that 
he  had  never  seen  the  lots  ;  that  he  knew  little  or 
nothing  about  them  and  had  heard  that  they  were 
worth  more  than  $1,300. 

The  most  i)lausible  inference  that  can  be   drawn 


CIVIL    PROCEDURE    REPORTS.  49 

Stephenson  v.  Hanson. 

from  that  statement,  is  that;  when  the  judgment  debtor 
swore  that  he  had  no  property,  he  believed  the  lots  to 
be  without  any  value  ;  and  in  view  of  their  abandon- 
ment, together  with  the  gold  watch,  and  of  the  entire 
absence  of  proof  of  any  value,  I  shall  consider  their 
value  at  $100. 

My  judgment  therefore,  based  upon  all  the  facts 
before  me,  leads  to  the  conclusion,  that  when  the 
suretj?-  executed  the  undertaking,  he  was  possessed  of 
five  dollars  in  the  Bowery  Savings  Bank,  an  interest  in 
two  billiard  tables  of  the  value  of  $75,  and  three  lots 
in  Illinois  of  the  value  of  $100,  property  amounting  in 
all  to  $180,  and  (hat  the  affidavit  of  justification  at- 
tached to  the  said  undertaking,  sworn  to  July  19,  1883, 
was  false. 

So  long  as  the  law  of  this  state  provides  for  arrest 
in  civil  proceedings,  its  requirements  should  be  en- 
forced \vith  literal  exactness.  The  defendant  Hanson 
was  entitled  to  two  sufficient  sureties,  as  provided  in 
section  559,  Code  of  Civil  Procedure,  and  he  would 
not  have  been  arrested  and  held  to  bail,  if  Kolter  had 
not  acted  as  surety,  and  falsely  sworn  that  he  was  worth 
the  sum  in  which  he  justified. 

It  is  no  slight  matter  to  deprive  a  person  of  his 
Iibertj%  and  cause,  or  aid  in  causing,  his  imprisonment 
without  due  process  of  law  -^  yet  this  surety  seems  to 
have  regarded  his  performance  as  a  most  trivial  one, 
and- frankly  testifies,  seeniinglj^  as  an  adequate  apol- 
ogy, "  that  he  went  on  the  undertaking  as  a  matter  of 
friendship  for  Mr.  Stephenson  and  received  not  one 
dollar  for  it." 

It  is  to  be  regretted  that  he  is  not  alone  in  his 
flimsy  view  of  the  law,  and  that  he  has  so  large  a 
following  of  others  who  regard  the  act  of  becoming  a 
surety,  assimplj''  perfunctory,  and  not  one  of  the  nec- 
essary safeguards  against  the  possible,  and  too  fre- 
VoL.  VI.— 4 


50  CIVIL    PROCEDTTRE    REPORTS. 

Sleplicnson  c.  Hanson. 

quent,  abuses  and  perversions,  of  the  provisional  rem- 
edy of  arrest  in  civil  actions. 

Tlie  surety   was  guilty  of   perjury,   which  is 
[*]     a  contempt  of    court   (Stackliouse    v.    French,  1 

Bing.  36o). 
Section  2285,  Code  of  Civil  Procedure,   empowers 
the  court  to  punish  that  offense,  by  imposing  a  line, 

sufficient  to  indemnify  the  defendant  for  the  loss 
[*J     and  injury  he  has  sustained,  through  the  surety's 

misconduct,  and  by  imprisoning  him  for  six 
months,  and  until  the  fine  is  paid. 

The  power  to  punish  for  contempt  is  a  branch  of 

the  common  law,  adopted  and  sanctioned  by  tlie 
[*]     constitution  of    this   state   (Yates  v.    Lansing,  "9 

Johns.  416  ;  Eagan  n.  Lynch,  3  N.  Y.  C/'v.  Pro. 
236). 

The  language  of  the  undertaking  fixes  the  maturity 

of  the  surety's  obligation,  upon  the  dale  of  the 
[•]     order  (May  6,  IQ^^),  finally  racatiruj  the  arrest; 

the  fact  that  tlie  plaintiff  has  appealed  from  the 
judgment  in  the  original  action  is  therefore  not  ma- 
terial. 

It  is  urged  that  the  suretj^  did  not  willfnlly  and 
knowingly  mislead  the  court,  and  intentionally  swear 
falsely  ;  if  so,  I  will  extend  to  him  the  benefit  of  the 
doubt,  and  will  not  inliict  the  punishment  of  six 
months'  im[)risonment,  as  for  a  criminal  contempt. 

The  power  and  duty  of  the  court  is  to  redress  the 
wrong  of  the  injured  party  ;  it  can  make  no  difference 
to  him,  whether  the  contempt  was  designedly  or  neg- 
ligently  committed,  his  loss  is  the  same  in  either 
event. 

The  actual  loss  occasioned  by' the  wrongful  act  of 
the  surety  Kolter  is  the  amount  of  the  judgment 
recovered  against  him  by  Hanson,  in  the  action  upon 
the  undertaking,  to  wit:  $281.65  with  interest,  and 


CIVIL    PROCEDURE    REPORTS.  61 

Lauiie  «.  Smith. 

$50,  allowed  as  reasonalble  counsel  fee  for   the  legal 
services  required  in  the  [)roceedings. 

The  surety  is  fined  that  amount  and  his  comrait- 
'iiient  is  directed  until  the  line  is  paid. 


LAUDE  -y.  SMITH,  Impleaded,  etc. 

Supreme  Court,  Oneida  County,   Special  Teem, 
July,  1883. 

g§  450,  1206. 

Action  for  slander  against  married  woman — Making  husband  party  to. 

In  an  action   against  a  married  woman  for  slander,  her  husband  can- 
not properly  be  made  a  party  defendant 
Sections  400  and  1206  of  the  Code  of  Civil  Procedure,  construed. 
{Decided  July  2,  1883.) 

Demurrer  to  complaint. 

The  facts  are  sufficiently  stated  in  the  opinion. 

J.  Mathews,  for  the  demurrer. 

S.  J.  Barrows,  opposed. 

Merwin,  J. — The  defendants  are  husband  and 
wife.  The  action  is  to  recover  damages  for  slander 
Uttered  by  the  defendant  Louisa  Smith,  of  and  con- 
cerning the  plaintiff.  It  is  not  alleged  to  have  been 
uttered  in  the  presence  or  by  the  direction  of  the  hus- 
band Thomas  Smith.  The  only  reason  for  making 
him  a  party  exists  in  the  allegation  that  he  is  the  hus- 
band.    The  defendant  Thomas  Smith  demurs  to  the 


62  CIVIL    PROCEDURE    REPORTS. 

Liuidc  V.  SmitI). 

complaint  on  tlie  ground  that  it  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action  against  him, 
and  tljat  he  is  not  a  proper  party.  So  that  the  ques- 
tion is  whether  the  husband  in  an  action  against  the 
wife  for  lier  separate  personal  tort  is  a  pi'Of)er  ])arry 
defendant.  Judicial  opinion  on  this  subje(;t  is  not  har- 
monious (Fitzgerald  o.  Quann,  1  iV.  Y.  Civ.  Pro.  273, 
Fitzsimons  o.  Harrington,  1  Id.  360  ;  Hoffman  v.  Lacli- 
man,  1  Id.  278,  note;  Berrien  v.  Steel,  Id.  o79,  note ; 
Trebing  v.  Vetter,  12  Abb.  N.  C.  302,  note;  M user  v. 
Miller,  3  N.  Y.  Civ.  Fro.  388,  394).  I  am  therefore  called 
upon  to  form  an  opinion  for  myself.  Concededly, 
before  the  adoption  of  the  Code  of  Civil  Proceduie, 
the  husband  was  a  necessary  party  defendant,  not  on 
theground  that  in  contem[)lation  of  law  he  was  guilty  of 
the  act,  but  from  the  incapacity  of  the  wife  to  be  sued 
without  her  husband  (Kowing  v.  Manle}',  49  N.  Y. 
192, 1^8).  Section  450  of  Code  of  Civil  Procedure,  when 
it  took,  effect  in  1877,  was  as  follows  :  "  In  an  action  or 
special  proceeding  a  married  woman  appears,  prose- 
cutes or  defends  alone  or  joined  with  other  i)arties  as 
if  she  were  single."  This  apparently  was  intended  to 
sweep  away  all  distinctions  between  '<\feme  sole  and  a 
feme  covert.,  in  respect  to  suing  and  being  sued,  and 
was  broad  enough  to  accomplish  the  i)urpose  (.Tan- 
inski  V.  Heid^^lberg,  21  Hitn,  439).  By  section  1206  of 
the  same  Code  it  was  provided  that  a  judgment  against 
ii  married  woman  may  be  rendered  and  enforced  as 
if  she  were  single,  and  the  revisor  i-emaiks  that  there 
seems  to  be  no  sufficient  reason  foi*  preserving  any 
longer  the  remnants  of  the  distinction  between  actio!is 
against  married  women  and  actions  against  other  per- 
sons. In  view  of  the  provisions  of  sections  400  and 
1206  it  wojild  seem  very  clear  that  the  reasons  of  the 
rule  reqii-iring  the  husband  to  be  a  i^arty  defendant 
were  entirely  gone  (6o  111.  \2d  ;  120  Mass.  89). 

At  common  law  the  husband  was  a  necessary  party 


CIVIL    PROCEDURE     REPORTS.  53 

Liiude  V.  Smith. 

plaintiff  in  an  action  bionght  for  personal  injuries  to 
the  wife.  This  rule  was  abrogated  by  the  i)rovisions  of 
section  7,  of  chap.  90  of  the  Laws  of  18(50,  as  amended 
by  section  8  of  chap,  172  of  1862  (Mason  o.  Marsh.  35 
Barb.  68  ;  Runisey  v.  Lake,  55  How.  Pr.  339).  These 
provisions  were  repealed  b}^  the  repealing  acts  of  1880, 
chap.  245.  So  that  the  rights  of  married  women  to 
bring  actions  in  their  own  names  for  personal  injuries 
now  rests  on  section  450  of  the  Code.  (See  Revisor's 
note  to  section  1906.)  I  find  no  other  law  authorizing 
it.  Still  it  is  said  that  the  addition  b}'  amendment  in 
1879  to  section  450  of  the  words,  "It  is  not  necessai'y 
or  x>i'oper  to  join  her  husband  with  her  as  a  party  in 
an  action  or  special  proceeding  affecting  her  separate 
propei't}',"  call  for  the  construction,  now,  of  the  whole 
section  to  the  effect  that  in  actions  not  affecting  her 
separate  property,  the  husband  must  be  joined.  If 
that  is  so  then  in  all  actions  for  personal  injuries  ol 
the  wife,  the  husband  must  be  a  party  plaintiff. 

I  do  not  believe  any  such  result  was  intended.  The 
repeal  by  the  act  of  1880  of  the  provisions  of  1800-2, 
was  not  with  the  idea  that  married  women  should  be 
thrown  back  to  such  remedies  as  they  had  prior  to 
1860,  but  upon  the  theory  that  section  450  as  it  stood 
in  1880,  gave  them  in  substance  the  same  rights  they 
had  under  the  law  of  1862.  True,  the  reason  for  the 
amendment  of  1879  is  not  very  apparent.  Very  likely 
it  was  designed  to  apply  to  some  special  case  that  had 
somewhere  arisen.  At  most,  it  was  a  re-enactment  of 
what  then  in.  fact  existed,  but  in  a  wider  and  moie 
comprehensive  form.  Such  re-enactment  of  a  j^art 
should  not  affect  the  validit}'-  of  the  remainder,  espec- 
ially when  important  rights  were  involved. 

In  my  opinion  the  husband  is  not  a  proper  party 
defendant.  The  demurrer  is  therefore  sustained  with 
leave  to  the  plaintiff  to  amend,  on  payment  of  costs  of 
demurrer. 


64  CIVIL    PROCEDURE    REPORTS. 

Lidgerwood  Manufacturing  Co.  v.  Baird. 


LIDGERWOOD    MANUFACTURING    COMPANY 
V.  BAIRD. 

SuPEEiOR  Court  of  the  City  of  New  York* 
Special  Term,  August,  1884. 

§1  600,  624. 

Pleading —  Denial  in  answer  on  information  and  belief. 

"Where  a  defendant  has  information  sufficient  to  form  a  belief  as  to 
the  truth  of  an  allegation  in  the  complaint,  but  no  personal  knowl- 
edge of  ihc  facts,  he  may  deny  it  on  such  information  and  belief. 
It  was  not  the  intention  of  the  legislature  to  compel  a  party  to 
admit  an  allegation  tiiat  he  is  satisfied  is  false,  but  of  which  he  has 
no  personal  knowledge,  or  else  commit  perjury  by  an  al)Solute  de- 
nial or  an  allegation  of  want  of  information  sufficient  to  form  a 
belief. 

Pratt  Manufacturing  Co.  v.  Jordan  Iron,  &c.  Co.  (5  N.  Y.  Civ.  Pro. 
372),  distinguisiied;  Brotbertou  v.  Downey  (21  Hun,  43G),  fol- 
lowed. 

{Decided  August  1,  1884.) 

Motion  to  strike  out  certain  allegations  of  the  com- 
plaint a.-i  irrelevant  and  redundant,. 

The  plaintiff,  a  domestic  corporation,  brought  tliis 
action  to  recover  certain  chattels  whicli  it  alleges  the 
defendant  wrongfully  detains  from  it.  TIih  (lefeiid- 
ant  claims  to  own  the  chattels-,  having  pnrehased  tliem 
from  the  one  who  bought  them  at  the  foreclosure  of  a 
chattel  mortgage  thereou  uiade  by  one  Palmer  Sessions. 
The  plaiiitilfsaver  that  Mr.  Sessions  was  a  mere  bailee 
of  I  he  chattels,  while  the  defendant  asserts  that  he 
was  the  owner. 

In  his  answer  the  defendant  denied  several  allega- 
tions of  the  complaint,  among  others  those  allegitig 
ownership  in  i)laintifr  and  the  wrongful  detention  by 
defendant,  upon  information  and  belief. 


CIVIL    PROCEDURE    REPORTS.  55 

Lidgerwood  Manufacturiiig  Co.  v.  Baird. 

James   WkUe,  for  the  moliori. 

Cired  Hecketti\  Richards,  11  N.  Y.  Legal  Ohs.  315  ; 
Pratt  M'f'g.  Go.  v.  Jordan  Iron,  &c.  Co.,  5  N.  Y.  Clo. 
Pro.  372;  Svviiibuni  o.  Stockwel!,  58  How.  Z>.  312  ; 
Tberasson  t>.  McSpedon,  2  II/ll.  1 ;  Code  Civil  Proce- 
dure, §  500  ;  Code  of  1S18,  §  128  ;  Code  of  1849,  §  149. 

Joseph  Feitretch  {Thovias  H.  CooJc,  attorney), 
opposed. 

Inguaiiam,  J. — The  denial  in  t"he  answer  in  this  case 
differs  from  the  answer  in  Pi'att  M'f'gCo.  v.  Joi'dan  Iron 
&c.  Co.  {iJ-.N.  Y.  Clo.  Pro.  372),  and  is  in  form  similar 
to  the  answer  in  Brotherron  ?\  Downey  (21  Hun^  436). 
The  defendant  having-  information  sufficient  to  form  a 
belief  as  to  facts  in  the  2d  paragrapli  of  the  complaint 
but  without  pervsonal  knowledge  of  such  facts,  would 
be  guilty  of  perjury  under  seci ion  524  of  the  Code  if 
he  either  denied  the  allegation  absolutely  or  alleged 
he  had  no  knowledge  or-informarion  sufficient  to  form 
a  belief  of  their  truth.  The  note  to  section  524  says 
that  one  of  the  objects  of  this  section  was  to  compel 
the  pleader,  when  the  denial.is  on  infornsation  or  be- 
lief, to  state  such  facts  in  the  answer  itself.  See  Mr. 
Throop's  note  to  section  524.  I  do  not  think  that  it 
could  have  been  the  intention  of  the  Legislature  to 
compel  a  party  to  admit  an  allegation  that  he  is  satis- 
lied  is  false,  but  (>f  which  he  has  no  personal  knowl- 
edge, or  else  commit  perjury  by  an  absolute  denial  or 
an  allegation  of  want  of  inloiination  sufficient  to  form 
a  belief.  I  will  therefore  ft)llow  Brotherton  v.  Dow- 
ney {supra).     Motion  denied,  but  without  costs. 


H6  CIVIL    PROCEDURE    REPORTS. 


Allen  V.  Swan. 


ALLEN,  Respondent,  v.  SWAN,  Appellant. 

Supreme  Court,  Fourth  Department,  General 
Term,  October,  1883. 

§§  3016,   3070. 

Justice's  court — When  offer  to  reduce  terdiel  may  he  made — Effect  of  such 

offer  made  after  judgment — Power  ofjnsiiee  to  niter  or  change 

■record — Appeal — Jiight  to  costs. 

A  justice  of  the  peace  upon  the  receipt  of  a  verdict  in  an  action 
tried  before  him  should  forthwith  rentier  judgment  and  enter  it  in 
his  docket.  After  he  has  done  so  he  is  witi)ont  jurisdiction  or 
authority  to  alter  or  ci)ange  tiie  record  in  any  respect. 

After  judgment  has  been  rendered  and  entiTcd  in  an  action  in  a 
justice's  court  an  offer  by  t!ie  successful  party  to  reduce  ti)e  judg- 
ment is  wholly  ineffectual  for  that  purp<>s<;  and  the  judgment  r«j- 
maius  as  it  was  entered,  notwithstanding  an  entry  by  the  justice  in 
ins  docket  of  ll)e  fact  tliat  the  offer  had  been  made.  St-ction  301G 
of  the  Code  does  not  recognize  any  sucii  |)rooeeding  but  merely 
aathorizes  tiie  party  in  wlioso  favor  a  verdict  is  rendered  to  remit 
a  part  and  take  judgn)ent  for  the  residue. 

Where  in  an  action  in  a  justice's  court  judgment  was  entered  in  favor 
of  the  plaintiff  for  $34.50  damages,  and  $18.87  costs,  and  the  plaint- 
iff thereafter  offered  to  reduce  the  judgment  to  $1'.).21  nnd  costs, 
and  the  defendant  appealed  from  the  judgment  and  the  pl.iinliff 
thereupon  offered  to  allow  judgment  to  l)e  rendered  in  the  ap|)i  I- 
late  court  in  her  favor  f-jr  $I"J. 31,  iwid  $18.47  costs  of  the  court  below 
and  the  defendant  served  a  notice  t!at  he  accepted  so  much  of  the 
offer  as  related  to  damages  and  rejecte<l  so  much  as  related  to  costs, 
and  a  trial  was  had  in  the  a;pell;itc  court  which  resnlied  in  a  ver- 
dict in  plaintiff's  favor  for  $19.21  :i/cW,  that  the  defendant  was 
entitled  to  the  costs  of  the  appeal. 

{Decided  April,  1884.) 

Appen]  from  OiiontTa^^a  coiinry  court  denying  mo- 
tion of  defHrtdant  for  retaxarion  of  costs  lierein,  and 
that  the  clerk  be  directed  to  tax  costs  in  his  favor. 


CIVIL    PROCEDURE    REPORTS.  57 

Allen  V.  Swan, 

This  action  was  originally  fried  in  a  justice's  court 
in  the  city  of  Syracuse,  before  a  jury.  The  complaint 
was  upon  an  assigned  account  for  work,  labor  and 
services,  and  the  plaintiff  demanded  judgment  lor 
S19.21.  The  answer  was  a  general  denial,  payment, 
and  a  counrer-claim  for  more  than  $oO.  The  jury 
in  the  court  below  rendered  judgment  in  favor  of 
plaintiff  for  $34.50,  being  815.29  more  than  was  de- 
manded in  the  complaint  or  pioved  upon  the  trial, 
and  the  justice  immediately  entered  judgment  in  favor 
of  plaintiff  for  $84.50  damages  and  $18.87  costs,  in  all 
$53.87. 

The  next  daj^,  and  before  any  further  steps  were 
taken  in  the  action,  the  plaintiff  liled  with  the  justice 
an  offer  in  writing  to  remit  the  excess  over  the  amount 
for  which  judgment  was  demanded  in  the  complaint. 

The  justice  refused  to  modify  the  formal  entry  of 
judgment  in  his  docket,  but  made  a  minute  of  the  fact 
that  the  offer  had  been  made  in  his  docket. 

On  December  1,  1882,  the  appellant  duly  appealed 
to  the  Onondaga  county  court  for  a  new  trial  on  the 
merits. 

On  December  4,  1882,  the  respondent  served  on 
appellant  an  offer  under  section  3070  of  the  Code  of 
Civil  Procedure,  "  to  allow  judgment  to  be  rendered 
in  the  county  court  of  Onondaga,  in  favor  of  Anna  M. 
Allen  and  against  George  E.  Swan,  for  the  sum  of 
$19.21  damages,  with  $18.87  costs  of  the  court  below," 
and  the  appellant's  attorneys  thereafter  served  on  the 
respondent's  attorneys  an  offer  accepting  the  respon-' 
dent's  offer  of  compromise,  so  far  as  the  same  related 
to  the  $19.21  damages,  but  declined  the  balance  which 
related  to  the  $18.87  costs. 

The  cause  in  due  time  came  to  trial  in  the  county 
court,  before  the  court  without  a  jury,  a  jury  having 
been  waived,  and  the  defendant- offering  no  evidence, 
judgment  was  rendered  in  favor  of  the  plaintiff  for 


58  CIVIL    PROCEDURE    REPORTS. 

Allen  v.  Swan. 

$19.21  damages,  being  the  precise  sum  to  which  plaint- 
ili"  had  already  twice  offered  to  reduce  her  judgment. 

The  cleik  against  appellant's  objection  taxed  costs 
of  the  appeal  in  favor  of  the  respondent.  The  appel- 
lant thereupon  moved  in  the  county  court  for  an  order 
setting  aside  the  clerk's  taxation  oi  costs,  and  allowing 
costs  to  appellant.  The  county  court  dejiied  this 
motion  and  affirmed  the  order  of  tlie  clerk.  From  the 
order  of  the  county  court  this  appeal  is  taken. 

Jay  Kline  {Gray  &  Kline,  attorneys),  for  appellant. 

Section  3010  does  not  authorize  or  permit  a  party  to 
reduce  a  judgment  already  recovered,  but  upoh  the 
rendering  of  the  verdict,  to  remit  any  i)art  thereof  and 
take  judgment  for  the  residue.  Before  the  Code  tjieie 
was  a  similar  statute.  .  .  .  2  It  8.  (Banks'  Gth  ed.)  418. 
....  It  is  fairly  held  under  this  Inst  statute  that  the 
remision  must  be  made  before  judgment  is  entered. 
2  WaiCs  Law  and  Practice,  688-698.  After  judgment 
has  been  entered  it  cannot  be  changed  and  is  conclu- 
sive.    2  Id.  701-702. 

J.  Page  Munro  {Hancock  &  Munro,  attorneys),  for 
respondent. 

Under  section  3016  of  the  Code  of  Civil  Piocedure, 
the  parly  in  whose  favor  a  veidict  or  judgment  is  ren- 
dered may  remit  any  poition  thereof  at  any  time  either 
before  or  after  judgment,  until  the  aggiieved  i^arty  has 
served  his  notice  of  appeal,  and  the  cause  being  there- 
by removed  to  another  court,  the  jurisdiction  of  the 
justice  has  ended Statutes  providing  lor  com- 
promises of  this  character  are  intended  to  prevent  and 
suppress  needless  litigation  and  should  be  so  construed 
as  to  carry  out  the  intention  of  the  law-makers. 
Wynkoop  v.  Holbert,  43  Barb:  206. 

The  right  to  remit  a  i)ortion  of  an  excessive  verdict 
before  judgment  in  justice's  court  was  settled  before 


__.  '  CIVIL    PROCEDURE    REPORTS.  5& 

Allen  V.  Swan. 

the  adoption  of  the  new  Code.    Burger  v.  Kortright,  4 
Johns.  414.  .  .  . 

If  under  section  3016  the  respondent  was  entitled  to 
make  the  offer  which  she  has  made^  after  the  rendi- 
tion of  judgment,  then  she  was  entitled  ns  a  matter  of  • 
right  to  have  the  judgment  modilied  upon  the  justice's 
docket  to  correspond  therewith.  The  act  of  the  justice 
in  so  modifying  the  docket  would  have  been  not  a  judi- 
cial but  a  ministerial  act,  and  although  the  actual 
formal  modification  was  not  made,  it  will  be  regarded 
by  the  appellate  court  as  having  been  made.  Stephens 
V.  Santee,  49  iV.  Y.  35  ;  Bradner  v.  Howard,  76  Id.  417- 
419.  .  .  . 

If  section  3016  provided  only  for  the  remission  of 
the  verdict  of  a  jury,  or  of  some  portion  thereof,  there 
might  be  some  ground  for  believing  that  the  remission 
must  be  made  before  judgment.  But  the  section  also 
provides  that  the  remission  may  be  made  in  the  case 
of  "  the  decision  ot  a  justice  without  a  jury."  In  the 
latter  case  the  remission  can  in  no  case  be  made  till 
after  judgment,  because  the  decision  of  the  justice  is 
the  judgment.  Bouvier  defines  the  term  ''decision" 
thus:  "A  judgment  given  by  a  competent  tribunal." 
This  definition  is  applicable  to  our  justice's  courts,  be- 
cause the  statute  has  never  provided  for  any  mode  of 
announcing  the  decision  of  a  justice  of  the  i)eace  be- 
fore judgment,  or  otherwise,  than  by  entering  judg- 
ment upon  his  decision.  .  .  . 

In  Seaman  v.  Ward  (1  B/U.  52,  53),  the  court  say  : 
"There  is  no  such  thing  as  a  judgment  rendered  in 
the  mind  of  the  justice.  Judgment  is  a  judicial  rict, 
not  a  mental  resolution.  It  is  not  enough  that  the 
judge  concludes  to  render  judgment ;  he  must  declare 
it.  He  must  declare  it  by  an  official  act,  such  as  in- 
dorsing an  entry  or  minute  of  his  decision  upon  the 
process  returned  before  him,   from  which  the  clerK 


60  CIVIL    PROCEDURE    REPORTS. 


Allen  V.  Swan. 


dockets  or  registers  tlie  judgment,  as  it  has  been  ren- 
dered by  the  jusrice.  ... 

After  the  appeal  vvas  taken  the  respondent  duly 
servt^il  an  offer  under  section  3070  to  alhjw  judgment 
to  bo  entered  in  his  favor  as  already  stated,  for  $10.21 
damages,  and  $18.47  costs  of  the  court  below.  .  .  . 

Under  the  old  practice  pursuant  to  section  371  of 
the  Code  of  Procedure,  the  rule  was  always  in  the  offers 
made  upon  both  sides  to  separate  the  damages  and 
costs.  Myers  v.  White,  37  Row.  Pr.  393  ;  4  WaiCs  Pr. 
397,  ad  fill.  413,  ad  fin. 

Bakker,  J. — Upon  the  receipt  of  the  verdict  it  is 
the  dut}''  of  the  justice  forthwith  to  render  judgment 
and  enter  it  in  his  docket-book  (6We,  §  3015). 

All  agree  after  the  performance  of  this  act  he  is 
without  jurisdiction  or  authority  to  alter  or  change  the 
record  in  any  resi)ect.  In  my  opinion,  the  offer  of  the 
plaintiff  to  reduce  the  judgment  was  wholly'  ineffective 
for  that  pur[)ose,  and  tlint  it  renuiined  as  it  was 
entered,  a  judgment  for  $34.50  damages  and  $18.87 
costs,  notwiilistanding  the  entry  made  by  the  justire. 
yection  3016  does  not  recognize  any  such  proceedings. 
It  is  merely  a  statutory  peiniission  authorizing  tiie 
party  in  whose  favor  the  verdict  is  rendered  to  lemit 
any  portion  thereof,  and  take  judgment  for  the  residue. 
A  record  of  jutlgment  made  up  and  entered  acfrording 
to  the  rules  and  practices  of  the  court  in  which  the 
action  is  pending  cannot  be  altered  or  amended  by  an 
ex  parte  motion  of  either  party  ;  this  is  a  general  rule  .' 
api)licubie  to  all  courts.  The  offer  of  the  plaintiff"  to  >, 
reduce  the  judgment,  and  the  entry  made  by  the  jus- 
tice in  his  docket  is  a  proceeding  unknown  to  the  hnv. 

There  is  no  power  or  authority  vested  in  anj'^  court 
or  officer  to  regulate  the  practice  by  which  such  a  re- 
sult may  be  reached.  To  admit  the  right  of  the  plaint- 
iff to  make  and  file  an  offer  with  a  view  of  altering  the 


CIVIL    PROCEDURE    REPORTS.  61 

Allen  V,  SWiin. 

record,  would  be  mischievous,  misleading,  and  often 
result  in  dispute  and  contentions  between  the  parties. 
If  the  party  in  whose  favor  the  judgment  is  entered 
may  authorize  the  justice  to  modify  the  same  by  re- 
ducing the  amount  thereof,  he  may  do  it  any  moment 
before  the  notice  of  appeal  is  served.  This  might  be 
done  by  the  party  claiming  the  right,  at  such  time  and 
under  such  circumstances,  as  to  make  it  exceedingly 
dilBcnlt  for  the  party  feeling  aggrieved  by  the  judg- 
ment to  determine  whether  his  interest  would  be  best 
'served  by  acquiescing  in  the  judgment  as  reduced  by 
the  oft'er,  or  to  seek  further  modilication  by  appeal. 
In  this  case  it  does  not  appear  that  the  appellant  had 
notice  at  the  time  he  served  notice  of  his  appeal,  that 
the  offer  had  been  made  and  tiled,  and  that  the  justice 
had  made  an  entry  in  his  docket  of  the  fact.  If  the 
offer  as  made  and  filed  with  the  justice  had  been 
brought  to  the  appellant's  attention,  he  could  not  have 
determined  by  an  inspection  of  the  same  whether  or 
not  the  attorney  who  signed  it  in  the  name  of  the 
plaintiff  was  authoi-ized  to  make  the  ofPer.  The  in- 
strument is  not  acknowledged  by  the  plaintiff,  nor  is 
it  accompanied  with  any  evidence  that  the  attorney 
who  executed  it  was  authorized  to  perform  the  act. 

In  my  opinion  the  apx)ellant  was  entitled  to  the 
costs  of  appeal  in  the  county  court,  and  tluit  it  should 
be  so  ordered. 

Order  reversed  and  costs  awarded  to  appellant, 
with  costs. 

Smith,  P.  J.,  and  Haiidin,  J.,  concurred. 


«2  CIVIL    PROCEDtJRE    :REPOItTS. 


Estate  of  Le  Baron. 


ESTATE  OF  CALEB  B.  Le  BARON,   Deceased. 

Surrogate's  Court,  Kings  County,  July,  1884. 

§§  828,  829,  2750. 

^Proof  of  daim  againtt  decedent's  estate.  —Evidence  by  claimant  of  pet- 
'Sonal  transactions  icith  deceased. — Dehts  not  discharged  by  dis- 
charge in  banlcriiptcy . — Administrator. — Subrogation 
nf  claim  of  for  money  paid  to  redeem  real 
property  from  tax  sale  in  place  of 
lien  of  taxes. 

^be  fact  that  claims  against  a  decedent's  estate  htive  been  presented 
to  the  administrator,  and  by  him  admitted  to  l)e  valid  claims  against 
the  estate,  establishes7??'27no./Vi«'etlieir  validity,  and  puts  tlie  burden 
of  proving  tiieir  invalidity  upon  those  who  object  thereto. ['] 

'To  exclude  evidence  under  section  829  of  the  Code  of  Civil  Proce- 
dure, "whicli  provides  that  '*  a  person  or  a  party  inteivstcd  in  the 
event  .  .  .  shall  not  be  examined  in  his  own  bt-h.-ilf  or  in- 
terest .  .  .  against  the  executor,  administrator  or  survivor  of 
«  deceased  person  .  .  .  concerning  a  personal  transaction  or 
communication  between  the  witness  and  the  deceased  person," 
etc.,  the  case  must  be  brought  strictly  within  the  wording  of  the 
statute  ;  it  isnot  enough  to  be  within  its  spirit. [^  'j  Accordingly, 
Held,  wiiere  claims  against  a  decedent's  estate,  which  were  ad- 
mitted by  tiie  administrator  and  not  objected  by  the  decedent's 
survivors,  were  supported  by  the  testimony  of  the  claimants,  that  a 
mere  creditor  could  not  take  advantage  of  it.  |*,  '] 

"Where  a  bankrupt  willfully  and  frau<lulently  omits  the  names  and 
claims  of  certain  of  his  creditors  from  hi.s  scheibih*  of  delj'.s,  and 
gives  them  no  notice  of  tlic  application  for  his  discharge,  the  dis- 
charge can  be  attacked  by  them  after  his  decease  in  ft  proceeding 
in  the  surrogate's  court  for  the  settlement  of  his  estate,  and  so 
far  as  the  discharge  niTect»i  such  creditors  ir  is  inoperative.!''] 

Where  an  administrator  in  order  to  prevent  the  waste  cu' loss  of  the 
real  properly  of  his  decedent  redeemed  t!ie  same  from  tax-s.ile  :ind 
paid  the  taxes,  and  it  appeared  that  such  real  property  was  the  or.ly 
property  of  any  value  left  by  the  deceased,  and  that  his  debts 
exceeded   the   value  of  all  his  property: — Held,   that  while   the 


'   CIVIL    FROCEt>URE    REPORTS.  63 

Estate  of  Le  Baron. 

administrator  strictly  had  notiiing  to  do  with  the  real  estate  of  the 
decedent,  |']  the  sum  paid  by  liim  with  interest  from  tlie  date  of 
payment  should  bo  al'owed  as  a  preferred  claim  against  -the  de- 
cedent, and  he  should  be  subrogated  to  the  right  the  state  had 
against  the  property  for  the  uu|)aid  taxes,  j'",  "] 

Baclielder  ».  Low  (8  j!^(it'l.  Bniik''ci/.  Reg.  577)  ;^[^]  Poillon  «.  Law- 
rence (77  N.  T.  211),  ['j  followed. 

{DccUedJuhj  18,  1884.) 

Application  for  the  sale  of  decedent's  pro^^erty  to 
pay  his  debts. 

The  opinion  states  sufficient  facts. 

BlancJiard,  Gay  <&  Phelps,  for  administrator,  and 
for.:Mary  E.,  Oceana  H.  and  Anna G.  Le  Baron. 

George  Wilcox,  Mufas  L.  Scott,  Wilson  M.  Powell^ 
Adrian  Van  Sinderen  and  A.  W.  Gleason^  for  creditors. 

BERGEJir,  Surrogate.' — This  is  an  application  brought 
under  section  2750  of  the  Code  of  Civil  Procedure,  di- 
recting the  sale  of  real  property  of  a  deceased  person 
for  the  payment  of  his  debts. 

Upon  the  return  of  the  citation  a  number  of  cre- 
ditors appeared  and  presented  their  claims. 

The  claims  of  Anna  G.  Le  Baron  for  82,40.5.57; 
Oceana  H.  Le  Baron  for  $19,305.50  ;  and  Mary  E.  Le 
Baron  for  $23,372.53,  and  of  the  administrator  for  the 
sum  of  $926.40  were  disputed. 

It  appears  by  the  evidence  that  the  personal  prop- 
erty is  insufficient  to  ])ay  the  debts  of  the  decedent, 
and  therefore  the  creditors  are  compelled  to  resort  to 
the  real  estate  of  the  decedent  for  the  payment  of  the 
same. 

It  also  clearly  ajDpears  that  the  debts  of  the  de- 
cedent are  largely  in  excess  of  the  value  of  the  real 
estate,  and  that  in  no  event  could  the  creditors  re- 
ceive more  than  a  small ^ro  ra^a  amount  of  their  claims. 


64  CIVIL     PROCEDURE     REPORTS. 

Estatu  of  Jx'  liiuoii. 

William  A.  Jones,  wlio  has  [wesenfed  and  proved  his 
claim,  objects  to  the  claims  of  the  Le  Biiron  famil}',  to 
wit  :  Oceana  H.  Le  Baron,  Mary  E.  Le  Baron,  an<[ 
Anna  G.  Le  Baron,  who  are  sisteis  of  the  decedent. 

First.  Upon  the  ground  of  the  proof  of  the  in- 
debtedness is  too  indetinite. 

Second.  That  under  section  829  of  the  Code,  all  the 
evidence  of  these  parties  concerning  conversation's  or 
transactions  with  Caleb  B.  Le  Baron  should  be  ex- 
cluded. 

Tiiird.  That  the  discharge  in  bankruptcy  (>f  Caleb 
B.  Le  Baron  estops  these  claimants  from  establishing 
their  claims. 

I  have  carefully  reviewed  all  the  testimony  taken 
in  these  proceedings,  and  am  of  the  opinion  that  these 
claims  were  sufficiently  proved,  unless  the  testimony 
given  by  the  claimants  as  to  the  conversations  and 
transactions  with  the  decedent  should  be  stricken  out. 

It  appears  from  the  account  of  the  administrator 
on  file  in  this  office,  and  the  evidence  in  these  proceed- 
ings, that  the  administrator  had  admitted  these  claims. 

The  petitioning  creditor  simply  objects  to  the  said 
claims,  but  offers  no  evidence  to  show  that  they  are 
not  valid. 

It  seems  to  me  that  the  claims  having  been  pre- 
sented to  the  administrator,  and  by  him  admitted 
[*]     to  be  valid  claims  against  the  estate,  establish.es 

prima  facie  their  validity,  and  puts  the  buiden  of 
proof  upon  the  objector.  Matter  of  Fraser  (92 i\^.  Y. 
239). 

Section  828  of  the  Code  declares  "that  a  person 
shall  not  be  excluded  or  excused  on  account  of  in- 
terest, except  as  otherwise  specially  provided." 

Nor  do  I  think  that  it  comes  within   the  excei)tion 

provided  in  section  829  of  the  Code,   which  de- 

[*]    clares,  "  that  a  person  or  a  party  interested  in  the 

event  ....  shall  not  be  examined  in  his  own  be- 


CIVIL    PROCEDURE    REPORTS.  65 

Estate  of  Le  Baron. 

half  or  interest  ....  against  the  executor,  adminis- 
trator or  survivor  of  a  deceased  person  ....  con- 
cerning a  personal  transaction  or  communication  be- 
tween the  witness  and  the  deceased  person  ....  ex- 
cept when  the  executor,  administrator  or  survivor 
....  is  examined  in  his  own  behalf  concerning  the 
same  transaction  or  communication." 

To  exclude  evidence  under  tliis  section,  the  case 
[']     must  be  brought  strictly  within  the  wording  of 
the  statute  ;  it  is  not  enough  to  be  witliin  its  spirit. 
Severn  o.  National  Bank  of  Troy  (18  Hun,  228) ;  Lob- 
dell  V.  Lobdell  (36  N,  T.  327). 

The   testimony  referred  to  is  not  against  the  ad- 
[*]    ministrator  or  survivor  as  the  statute  says  it  must 
be.     The  administrator  admits  the  claims,  and  the 
survivor  does  not  object  to  the  evidence. 

The  objector  is  merely  a  creditor  of  the  decedent ; 
[*J     the  statute  was  enacted,  to  protect  the  representa- 
tives of  deceased  persons,  and.  they  are  the  onhy 
persons  who  can  take  advantage  of  it. 

The  claimants  in  this  proceeding  are  the  sisters, 
heirs  and  survivors  of  the  decedent.  They  loaned  him 
a  large  portion  of  their  property  and  trusted  implicitly 
in  his  integrity  and  ability  to  pay  them. 

In  my  opinion  thej"^  have  a  strong  legal  and  moral 
claim  upon  his  estate  for  the  payment  of  the  same. 
The  only  question  remaining  to  be  determined  is,  does 
the  dischaige  in  bankruptcy  of  Caleb  B.  Le  Baron  in 
1868  operate  as  a  discharge  of  these  claimants'  debts  ? 
It  appears  from  the  evidence  that  the  claim  of  Anna 
G.  Le  Baron  arose  after  the  discharge  was  granted, 
and  therefore  is  not  affected  by  it,  and  that  the  por- 
tions of  the  claims  of  Oceana  H.  Le  Baron  and  Mary 
E.  Le  Baron  which  arose  prior  to  the  granting  of  the 
discharge  are  not  barred  by  it,  inasmuch  as  the  pro- 
ceedings in  bankruptcy  of  Caleb  B.  Le  Baron  omitted 
to  mention  them  as  creditors,  and  that  they  did  not 
Vol.  YI.— 5 


66  CIVIL    PROCEDURE    REPORTS. 

Estate  of  Le  Biiron. 

receive  any  notice  of  the  said  proceedings,  and  tlint 
they  had  no  knowledge  that  he  had  been  dischaiged 
in  bankrii[)tcy. 

I  am  of  the  opinion  from  the  evidence  that  the  de- 
cedent, Caleb  B.  Le  Earon,  willfnlly  and  fraudulently 
omitted  their  names  from  the  schedule  of  hi«  debts  in 
bankruptcy  ;  that  he  never  caused  them  to  be  notified 
of  the  said  proceedings  for  his  discharge,  that  he  knew 
he  was  in  debt  to  these  claimants,  his  sisteis.  and 
knew  where  they  resided,  as  they  frequently  visited 
him  at  his  office  during  and  before  the  time  when  the 
proceedings  in  l)atdvruptcy  were  in  progress.  He  com- 
menced in  ]8»()  .paying  m(mey  on  account  of  his  in- 
debtedness to  each  of  his  said  sisters,  and  continued 
so  doing  until  within  a  month  of  iiis  death.  By  omit- 
ting their  names  from  the  schedules  in  bankruptcy  and 
keeping  them  and  each  of  them  in  entire  ignorance  of 
his  proceedings  therein,  he  deprived  thera  of  the  right 
to  resist  his  discharge  or  to  participate  in  their  share 
of  the  dividends  of  his  assets. 

In    the   case   of    Bachelder  *c.   Low   (8   Nail. 
[']    Bank'cy  Reg.  571),  it  was  held,  that  the  discharge 

is  to  be  pleaded  in  suits  upon  claims  in  courts 
where  pending,  and  those  courts  must,  to  some  extent, 
determine  the  validity  and  effect  of  the  pleas.  Ko 
other  court  could  consider  thern  and  render  judgment 
npon  them  in  those  cases.  The  provision  in  the  same 
section,  that  the  ceriilicateshall  be  conclusive  evidence 
of  the  fact  and  regularity,  seems  to  relate  to  the  mode 
of  proof  of  the  discharge,  and  not  the  effect  of  it  when 
proved.  As  now  understood  the  provisions  of  the 
bankrupt  act  do  nor  prevent  pl.iiniiffs  from  contesting 
the  validity  of  the  discharge,  as  to  them,  in  this  cour:, 
b}""  showing  that  it  was  obtained  upon  proceedings  of 
■which  they  were  fraudulently  depriviMl  of  notice.     In 

the  case  of  Poillon  r.  Lawience  (77  i\".  }'.  211), 
[']     it  was  held,  that  where  a  bankrupt  applied  for  a 


CITIL    PROCEDURE    REPORTS.  67 

\i  II        -. _____^_____ 

Estate  of  Le  Buron. 

discliJiige  in  a  name  ether  than  the  one  in  which 
he  contracted  the  debt,  thus  depiiving  the  creditor  of 
any  notice  of  the  application  for  his  discharge,  that  it 
couhi  be  attacked  in  the  court  in  whicli  the  creditor 
sought  to  establish  his  claim,  and  that  the  discharge 
would  be  held  inoperative  as  to  the  debt  of  the  ci-edi- 
tor  defrauded  thei-eby,  by  reason  of  the  failure  to 
nmke  him  a  party  to  the  proceeding,  by  proper  pubii- 
t^ation  or  otherwise, 

I  am  therefore,  led  to  the  conclusion  that  by  reason 
of  the  bankrupt  having  willfully  and  fi-audulently 
{']  omitted  the  names  and  claims  of  his  sisters  from 
his  schedule  of  debts  and  not  having  given  them 
any  notice  of  the  application  for  his  discharge,  that 
the  discharge  can  be  attacked  by  them  in  this  court, 
and  that  so  far  as  the  same  affects  said  sisters  it  is  in- 
operative. 

In  reference  to  the  claim  of  the  administrator  for 
having  paid  taxes  upon  property  at  East  New  York, 
Kings  County,  amounting  to  $926.40  on  November  20, 
188H,  it  appears  from  the  evidence,  that  the  same  had 
accumulated  upon  the  property  now  sought  to  be  sold 
under  these  proceedings  for  the  years,  1871,  1872, 1873, 
1874,  1875  and  1876,  and  the  property  was  sold  by  the 
state  comptroller  for  arrears  of  taxes  of  those  years, 
and  that  the  administrator  redeemed  the  same  on  the 
20th  day  of  November  1883,  in  order  that  the  proper- 
ty might  not  be  charged  with  the  additional  interest 
of  ten  per  cent. 

While  the  administrator,  strictly,  has  nothing  to 
do  with  the  real  estate  of  the  decedent,  and  has 
[']  no  right  to  apply  the  personal  property  in  pay- 
ment of  claims  against  the  real  estate,  still,  the 
only  property  the  decedent  left  of  any  value  was  this 
real  estate  in  question,  and  the  administrator  hav- 
ing acted  in  good  faith  and  for  the  best  interest  of 
the  estate  in  redeeming  the  property  from  the  sale  for 


68  aVIL    PROCEDURE    REPORTS. 

Estate  of  Le  Baron. 

the  unpaid  taxes,  which  had  been  levied  and  confirmed 

as  a  lien  upon  this  real  estate  prior  to  the  deatli  of  ihe 

decedent,  I  think  that  the  same  should  be  allowed  to 

the  administrator  as  a  preferred  claim  against  the 

["]     decedent,  with  interest  thereon  from  November 

20,  1883.     For  if  it  had   not  been  redeemed,   the 

taxes  would  still  remain  as  an  existing  and  first  lien 

upon  this  property.     The  administrator  having  paid 

them,  he  should  be  subrogated  to   the  right   the 

["]    state  had  against  the  property  lor  the   unjjaid 

taxes. 

I  am  of  the  opinion,  Jhat;'  the  following  claims  are 
entitled  to  preference  in  the  following  order,  to  wit : 

1st.  The  claims  of  the  administrator  for  the  amount 
paid  bj'-  him  to  the  state  treasurer,  November  20,  1883, 
to  redeem  the  property  in  question  from  the  sale  of 
taxes,  with  interest  from  that  date,  $926.40.  Interest 
from  November  20,  1883. 

2d.  Long  Island  Bank  judgment  against  decedent, 
$462.16.     Interest  from  June  19,  1876. 

3d.  Balance  due  on  judgment  recovered  by  C.  Van 
Brunt  and  others  against  decedent,  $282.07.  'Interest 
from  March  4,  1882. 

[Here  followed  a  list  of  general  claims  i)roved 
against  the  estate.] 

A  decree  may  be  entered  in  accordance  with  this 
opinion  upon  two  days' 'notice. 


CIVIL    PROCEDURE    REPORTS.  69 


Sweet  V.  Sanderson  Brotliers  Steel  Co, 


SWEET  V.  SANDERSON  BROTHERS   STEEL 
COMPANY. 

Supreme   Court,   On^eida   County,  Special  Term, 

April,  1884. 

§§  419,  422,  479. 

Complaint. — Effect  cf  »eroice  of,  after  service  of  eummons  and  before 
ajjpearance  <f  defendant. 

Where  a  copy  of  tlie  complaint  in  an  iiction  was  served  on  the  defend- 
ant two  days  after  the  summons  was  served  and  before  he  had 
appeared  :  Held^  rhat  the  phiintiff  acquired  no  rigiits  thereunder  ; 
that  a  motion  by  tlie  defendant  to  set  aside  the  service  was  proper, 
and  sliould  be  granted,  iiotV'ithstaftdiag  he  had  returned  the  Copy 
camphiint  to  the  plaintiff. 

(Decided  April  19,  1884.) 

Motion  by  defendant  to  set  aside  the  service  of  a 
copy  of  the  complain t- 

This  nction  was  commenced  April  1,  1884,  by  the 
service  of  tlie  summons  on  the  president  of  the  de- 
fendant. On  April  3.  and  before  the  summons  had 
passed  from  his  possession,  a  copy  of  the  complaint 
was  served  on  him,  ow  which  was  endorsed  the  follow- 
ing notice  :  '"  Lucius  Gleason,  Esq..  President  Sander- 
son Brothers  Steel  Company.  Sir :  A  summons  in 
case  of  William  A.  Sweet  against  Sanderson  Brothejs 
Steel  Company  was  served  on  you,  as  its  president, 
April  1,  1884.  The  comphiiut  herewith  served  on  you 
is  the  comi)laint  in  that  action,  dated  April  3,  1884," 
etc.  On  the  following  day  (April  4)  the  copy  of  com- 
plaint so  served  was  returned  to  the  plaintiff's  attor- 
neys with  a  notice  indorsed  thereon  that  it  was  re- 
turned because : 


70  CIVIL    PROCEDIXRE    REPORTa 

Sweet  e.  Sanderson  Brotlieis  Steel  Co. 

"  1st.  The  said  copy  of  thecomx)]aint  was  not  served 
with  the  summons  as  provided  by  section  419  Code 
Civil  Procedure. 

"2d.  The  defendant  has  not  demanded  a  copy  of 
the  coraplaJnt  as  provided  by  sectious  422  and  479, 
although  the  time  in  which  to  do  so  lias  not  ehipsed. 
Said  copy  of  the  complaint  was  not  served  upon  the 
defendant  with  the  summons,  nor  in  pursuance  of  any 
demand  on  the  part  ot  the  defendant  therefor." 

Thereafter  the  defendant  appeared  specially  by  his 
attorneys,  and  made  this  motion  on  the  grounds  stated 
in  the  last  mentioned  notice. 

Hitchcock^  G'tfford  <fe  DoJieny^  for  the  motion. 

Cliamherlain  &  Ayres,  opposed. 

The  person  served  with  the  complaint  was  the  only 
one  on  whom  the  san.e  couki  have  been  served,  and 
there  was  no  other  way  to  serve  the  complaint. 

The  service  of  the  complaint  in  this  action  was  in 
all  respects  regular  and  valid,  and  a  legal  service. 
Kleecke  v.  Styles  (3  Johtis.  249)  ;  Van  Pelt  t.  Boyer  (7 
How.  Pr.  325) ;  Paine  v.  McCarthy  (1  Ilvn,  78). 

Motion  should  be  denied  further  on  the  ground  that 
there  is  no  complaint  to  set  aside,  defendant  having 
returned  the  sajne  as  irregular,  &c. 

Mkkwin,  J. — The  case  of  Paine  n.  McCarthy  (1 
liun,  78)  is  as  I  read  it  an  authority  against  th<?  posi- 
tion of  the  plainfilf.  In  that  case  tiie  complaint  was 
served  two  days  after  the  summons.  Judgrnenr  was 
entered  by  defanlt  after  the  expiration  of  twenty  d.iys 
from  the  service  of  the  sum:nons,  but  befoi-e  the  expi- 
ration of  twentj'days  from  theservice  of  thecomj>lair)r. 
The  judgment  was  held  to  l>e  regular,  noappeanuice  oi- 
answer  having  been  put  in.  This  was  in  effect  a  hold- 
ing that  the  defendant  acquired  or  obtained  no  rights 


CIVIL    PROCEDURE     REPOR'J'S.  71 

I  •       — _ , 

Wilson  V.  Munoz. 

on  the  service  of  the  complaint  in  that  way.  It'  that 
be  so,  the  plaintiff  siiould  not  acquire  any  by  such  a 
service.  II"  the  plaintiff  was  not  bound  by  it  the  de- 
fendant should  not  be.  Acccnding  lo  section  479  of 
the  Code  of  Civil  Procedure  the  defendant  had  twenty 
da^'S  in  which  to  seive  a  notice  of  appearance,  and 
demand  a  copy  coini^aint,  which  should  be  served 
twenty  days  thereafter. 

The  return  by  tlie  defendant  of  the  copy  complaint 
served,  does  not,  I  think,  preclude  the  defendant  from 
making  this  motion,  it  not  api)earing  that  the  right  of 
the  defendant  to  so  return  it,  was  yielded  to  on  the  part 
of  the  plaintiff. 

Motion  granted,  costs  to  abide  event. 


WILSON  V.  MUNOZ,  as  Administratrix,  etc. 

Supreme    Court,    Skcond    Department,    General 
Term,  Pkbruauy,   1884. 

§§  828,  829. 

Evidence. — Instance    of   iridass,    not    incompetent    in    action    against 
adminidrator. —  Wluit  evidence  of  interest  necessari/. 

Where  in  an  nrtion  ngninst  an  ii'lministralrix  to  liave  n  mortgage 
fiixen  to  lier  dcccilcnt  declared  null  and  void  for  want  of  considera- 
tion, ihe  plaimilT's  iui.-baiid  who  \va>^  not  a  pany  was  ollcred  as  a 
Avitness,  and  it  ap|)<:ircd  lliat  'he  (uij:i'i:dly  owned  tiie  mortgaged 
premises  and  conveyed  tliem  to  one  '•  W."  wli.i  executed  llie  mort- 
gage in  queslion.  iind  tliercafter  deeded  said  premises  to  the  pl:tint- 
ilT  :  -llill,  tJiat  liaving  no  interest  in  the  action  lie  was  not  an 
incompetenr  witness  ;  also  Held,  -where  it  was  alleged  in  the 
answer  but  not  proven  "n  tiie  trial  tliat  the  consideration  for  the 
murtgiigu  was  a  debt  due  tlie  deceased  Irom  said  "  W."  that  a  bare 


73  CIVIL    PROCEDURE     REPORTS.     . 


Wilson  X.  Muuoz. 


averment  of  interest  in  tlie  answer  w:is  not  sufficient  to  establish 
the  fact  so  as  to  reject  the  witness  alleged  to  be  interested. 
{Decided  February,  \ii%^.) 

Appeal  from  judgment  in  favor  of  defendant. 

This  action  was  brought  to  cancel  and  set  aside  a 
mortgage  upon  certain  real  property  belonging  to  the 
plaintiff,  on  the  ground  that  it  was  given  without  con- 
sideration. 

The  plaintiff's  husband,  Michael  K.  Wilson,  on 
February  2,  1878,  executed  a  deed  of  the  premises 
covered  by  the  mortgage,  in  which  the  phiintiff  joined, 
to  one  George  Wilson,  and  he  on  February  G,  1878, 
conveyed  said  premises  to  plaintiff.  This  deed  was  not 
recorded  until  October  4,  1881,  after  tiie  death  of  the 
defendant's  decedent.  On  October  2;  1879,  said  George 
Wilson  executed  and  delivered  to  the  defendant's  de- 
cedent, Jane  Clay,  a  njortgage  on  the  said  premises  for 
$8,500,  which  is  the  mortgage  the  plaintiff  now  seeks 
to  have  set  aside.  The  defendant's  answer  aveis  that 
the  deed  from  Michael  K.  Wilson  to  George  Wilson 
was  upon  the  understanding  that  the  same  was  to  be 
held  for  his  (Michael's)  benefit  and  remain  under  his 
control,  but  these  allegations  were  not  proven  on  the 
trial.  The  plaintiff  sought  to  [)rove  that  the  mortgage 
was  given  without  consideration  by  the  testimony  of 
Michael  K.  Wilson,  hwi  the  court  excluded  his  evi- 
dence of  conveisations  and  transactions  with  the  de- 
fendant's decedent. 

Judgment  was  rendered  in  favor  of  the  defendant 
and  the  plaintiff  took  this  appeal. 

W.  B.  Mabea,  for  appellant. 

S.  3f.  Ostraadcr,  for  respondent. 

Barnaud,  p.  J. — When  Michael  K.  Wilson   was 


CIVIL    PROCEDURE    REPORTS.  73 

.^  .  _    ■ 

Wilson  ».  Munoz. 

oflFered  as  a  witness  by  plaintiff,  she  was  presumably 
the  owner  of  the  premises  covered  by  the  mortgage  she 
sought  to  annul. 

They  had  belonged  to  Michael  K.  Wilson  and  he 
had  transferred  the  same  to  one  George  Wilson.  George 
Wilson  bad  conveyed  the  same  to  the  plaintiff  who 
was  wife  of  Michael  K.  Wilson.  The  deed  to  George 
Wilson  had  been  duly  recorded,  but  his  deed  to  j)laint- 
iff  had  not  been  recorded.  .George  W'ilson  gave  the 
disputed  mortgage  to  Mrs.  Cla^^  defendant's  mother. 
Plaintiff  was  Mrs.  Clay's  sole  heir.  '  The  plaintiff 
avers  that  this  mortgage  Avas  given  without  any 
consideration.  Michael  K.  Wilson  was  a  competent 
witness  to  prove  this  fact.  He  was  not  a  party. 
The  defendant's  ancestor  did  not  derive  title  to  the 
mortgage  through  the  plaintiff  or  her  husband.  He 
had  no  interest  in  the  action.  If  he  was  the  agent 
either  of  the  plaintiff  or  of  Mrs.  Clay,  he  was  acompe- 
tent  witness.  Pratt  v.  Elkins,  80  iV".  T.  198.  The  an- 
swer avers  that  the  consideration  was  a  debt  of  Michael 
K.  Wilson,  due  to  Mrs.  Clay,  but  this  was  nnproven 
in  this  case.  A  bare  averment  of  interest  in  the  an- 
swer was  not  sufficient  to  establish  the  fact  so  as  to 
rej<"ct  the  witness  alleged  to  be  interested.  The  case 
discloses  reasons  which  might  affect  the  credibility  of 
the  witness  but  none  I  think  to  make  him  incompetent. 
Judgment  reversed  and  new  trial  granted,  costs  to  abide 
event. 


74  CIVIL    PROCEDURE    REPORTS. 


Lippincott  v.  Westray. 


LIPPINCOTT,  Respondent,  v.  WESTRAY,  Appel- 
lant. 

SuPKEME    Court,    First    Department,     General 
Term,  January,  1584. 

§§.1342,  2433. 

Order.  —  When     "properly     made    by    court. — HeHtttlement    of. —  What 
brought  \ipfor  review  by  appeal  from  order  denyiuij  resettlement. 

An  appeal  from  an  order  denying  a  resettlL'ment  of  an  order,  does  not 

^  bring  up  for  review  the  order  proposed  to  l)e  resettled.  ['J  The 
only  question  sucli  an  appeal  presents  is  wiietlur  or  not  tlur  appel- 
l.int  was  entitled  to  have  had  the  order  he  proposed  upon  liis  motion 
for  resell lemeut  entered  in  place  of  the  one  tijat  had  already  been 
j-rantcd.  [',  ^j 

A  motion  to  set  asiiie  an  order  appointing  a  receiver  in  supplementary 
proceedings  in  place  of  one  vviio  liad  resigned  is  properly  made  to 
tiic  court  and  not  to  a  judge  tiiereof,  [^3  **"*^  *'"  "  resetiknient  of 
the  order  entered  on  the  determination  of  such  motion,  an  (jrder 
purporting  to  be  made  by  a  judge  of  the  court  should  not  be  sub- 
stituted for  one  made  by  tlie  court.  [^] 

"Where  it  appears  upon  the  papers  that  amotion  was  made  and  heard 
at  the  special  term,  and  granted  or  denied  ijy  the  special  term,  ilurc 
can  be  no  right  to  enter  the  decision  as  an  order  of  a  judge  of  tiie 
Court.  [*] 

In  such  a  case  if  the  court  had  no  right  to  mukc  tiie  order  entered, 
for  want  of  jurisdiction,  f)r  i)tlierwise,  the  error  should  be  corrected 
!)y  an  appeal  directly  from  the  order  and  not  by  a  motion  to  re- 
set lie.  [*\ 

{Decided  March  7,  1884.) 

Appeal  from  order  of  the  special  term  refusing  to 
resettle  an  order  denying  motion  to  set  iiside  an  order 
appointing  a  substituted  receiver  in  proceedings  sup- 
plementary to  execution. 

The  opinion  states  the  facts. 

J.  M.  Ouiteau^  for  appellant. 

Q.  W.  Van  Slyck^  for  respondent. 


eiVIL    PROCEDURE    REPORTS.  75 

Lippincott  v.  Westray. 

Davis,  P.  J. — On  or  about,  June  17,  1881,  applica- 
tion was  made  upon  a  judgment  recovered  by  the 
plaintiff  against  the  defendant,  in  this  court,  to  the 
Honorable  Geokge  M.  Van  Hoesen,  a  judge  of  the 
court  of  common  pleas  of  the  city  iind  county  of  New 
York,  for  an  order  supplementary  to  an  execution 
issued  on  the  judgment  above  named,  and  such  pro- 
ceedings were  thereupon  had,  that  on  or  about  July 
19,  1881,  the  said  judge  appointed  one  Samuel  B. 
Speyer  as  receiver,  who  qualified  and  entered  upon  his 
duties.  Subsequently,  and  in  January,  1883,  the  said 
receiver  resigned,  and  applied  to  the  court  to  be  re- 
lieved from  his  position  ;  and  thereupon  on  notice  to 
the  defendant's  attorney,  aj^plication  was  made  to  a 
special  term  of  this  court,  held  by  Mr.  Justice  Baii- 
"RETT  for  the  appointment  of  another  receiver,  and  an 
order  was  accordingly  made  appointing  James  L. 
Butterley,  who  duly  qualified.  Afterwards,  and  on 
January  27,  1883.  with  the  jjermission  of  this  court, 
said  Butterley,  as  receiver,  brought  an  action  in  the 
court  of  common  pleas  to  set  aside  certain  transfers  of 
property  alleged  to  have. been  made  by  the  defendant 
to  his  wife  in  fraud  of  his  creditors.  On  October  20, 
1883,  the  defendant  made  a  motion  at  a  special  term, 
held  also  by  Mr.  Justice  Bauuktt,  for  removal  of  said 
Butterley  as  receiver  on  the  ground  of  irregularity  in 
his  appointment,  and  on  the  ground  that  he  was  an 
unsuitable  person  to  have  been  appointed,  because, 
although  an  attorney  of  the  court,  he  was  in  the  em- 
ploy of  the  jilaintiff's  attorney  as  chief  clerk.  On  the 
hearing  of  this  motion  before  the  special  term,  it  was 
denied,  and  an  order  denying  the  same,  with  costs,  was 
duly  entered.  The  papers  do  not  show  that  any  ap- 
peal was  taken  fiom  that  order  ;  but  afterwards,  and 
on  or  about  October  31,  a  motion  was  made  before  the 
same  court,  held  by  the  same  judge,  for  a  resettlement 


76  CIVIL     PROCEDURE     REPORTS. 

Lippiiicott  T.  Westray. 

of  the  order  entered  on  October  23,  which  motion  was 
denud,  and  from  this  order  of  denial  an  appeal  is  taken. 

Tile  axjpeal  from  the  order  denying  resettlement 
[•]    does  not  bring  up  for  review  the  order  proposed  to 

be  resettled.  The  only  question  such  an  appeal 
presents  is  whether  or  not  the  defendant  was  entitled  to 
have  had  the  order  he  proposed  upon  his  motion  for  re- 
settlement entered  in  place  of  the  one  that  had  already- 
been  granted.  The  amendment  proposed  to  substitute 
an  order  ])urporting  to  be  made  by  a  judge  of  ihe  court 
instead  of  one  made  by  the  court,  and  tliat  such  jndge 
denied  the  motion  of  the  defendant  without  ]uejudice 

to  a  motion  to  be  made  at  special  term.  The  court 
[']    seenjs  to  us  to  have  been  entirely  right  in  denjing 

that  application  ;  for  the  motion  to  set  aside  the 
prior  order  app/ointing  the  substituted  receiver  was 
properly  made  to  the  couit,  and  not  to  Mr.  Justice 
Baurett  as  a  jtidge  of  the  court.  The  defendant  had 
no  right  to  claim  that  an"  order  of  the  judge  be  substi- 
tuted for  that  ot  the  court  on  such  a  motion.  Irrespec- 
tive of  the  merits  of  the  original  motion,  the  substi- 
tuted or  amended  order  was  pioperly  refused. 

We  do  not  see  that  this  appeal  brings  up  any  other 

qnestion  than  that  already  considered  ;  and  where 
[•]     it  appears  upon  the  pajjers   that  a  motion  is  made 

and  heard  at  the  special  term,  and  granted  or 
denied  by  the  special  term,  there  can  be  no  right  to 
enter  the  decision  as  an  oi-der  of  a  judge  of  the  court. 

If  the  court  had  no  right  to  make  the  order  entered, 
[*]    for  want  of  juiisdiction,  or  otherwise,  the  eriorl 

should  have  been  corrected  by  an  appeal  directly  I 
from  the  order  entered,  and  not  in  the  manner  taken 
in  this  case. 

The  order  refusing  resettlement  should  therefore  be 
affirmed. 

Brady  and  Daniels,  JJ.,  concurred. 


CIVIL    PROCEDURE    REPORTS.  77 


Straus  V.  Kreie. 


STRAUS  «.  KREIS. 

City  Couut  of  New  York,  Special  Term,  June. 

1884. 

§  649. 

Oi'der  of  arrest. — When  complaint  or  affidavit  stating  its  contents  to  he 
presented  on  application  for. 

An  order  of  arrest  in  an  action  on  contract  on  the  groend  that  the 
defendant  was  guilty  of  fraud  in  contracting  the  liability  can  be 
granted  only  where  a  complaint,  alleging  the  fraud,  or  an  afBdavit 
setting  forth  the  allegations  of  tlie  complaint  are  presented  on  the 
application,  iind  the  absence  of  such  cora|)laint  or  affidavit  is  fatal 
to  the  order  of  arrest. 

Lawrence  v.  Foxwell  (4  N.  Y.  Civ.  Pro.  351),  followed  ;  O'Shea  v. 
Kohn  (unreported),  distinguished. 

{Decided  June,   1884.) 

Motion  to  vacate  order  of  arrest. 
The  opinion  states  sufficient  facts. 
Welile  d;  Jordan,  for  motion. 
Jacob  Stsinhardt,  opposed. 

Hyatt,  J. — This  is  a  motion  to  vncate  the  order  of 
^arr^st  herein,  iipon  tlie  ground  that  there  was  no  com- 
plaint presented  with  the  motion  for  the  arrest,  and 
that  the  affid^ivits  did  not  aver  whnt  the  allegations  of 
the  complaint  were. 

Althougt).  there  is  no  proof  before  the  court  that 
there  was  no  comphiint,  yet  it  was  conceded  upon  the 
argument  that  there  was  none. 

.  Subdivision  4  of  section  549,  Code  of  Civil  Proce- 
dure, provides  that  an  order  of  arrest  may  issue  in  an 
action  "on  contract,  where  it  is  alleged  in  the  com- 


78  CIVIL    PROCEDURE    REPORTS. 

Straus  V.  Kreis. 

plaint  that  the  defendant  was  guilt}^  of  a  fraud  in  con- 
tracting the  liability." 

The  langunge  of  the  law  is  clear  and  nnqiialiiied  ; 
its  imperative  requirement  is,  that  it  must  be  alleged 
in  the  complaint  that  the  defendant  was  guilty  of 
fraud.  This  has  been  directly  decided  by  the  general 
term  of  the  N.  Y.  supeiior  court,  in  the  case  of 
Lawrence  b.  Foxwell,  4  iV.  Y.  Civ.  Pro.  851. 

The  provision  is  an  exceptional  one,  but  it  is  possi- 
ble that  in  view  of  the  notorious  fact,  that  the  light 
to  an  order  of  arrest  was  most  frequently  abused  in 
xjases  embraced  in  subdivision  4,  of  section  649,  Code 
of  Civil  Procedure,  the  legislature  determined  to  re- 
quire this  additional  safeguard  in  this  class  of  cases; 
but  whatever  may  have  been  the  fnotive,  the  language 
is  free  from  doubt  and  the  absence  of  the  complaint  or 
of  affidavit's  averring  the  allegations  of  the  comphiint, 
is  fatal  to  the  order  of  arrest. 

I  am  not  unmindful  of  the  case  of  O'Shea  v.  Kohn, 
decided  at  the  general  term  N.  Y.  supi-eme  court,  1st 
department,  M;iy  29,  1884,*  wherein  the  court  alHrnied 
an  order  denying  a  motion  to  vacate  an  order  of  ar- 
rest. 

The  learned  justice,  writing  the  opinion  of  the 
court  says,  "the  motion  was  made,  because  of  the  al- 
leged insufficiency  of  the  affidavits  on  which  the  order 
was  founded,"  and  after  showing  the  sufficiency  of 
the  affidavits  he  states  that  "  when  the  complaint  shall 
be  served,  allegations  containing  statements  of  these 
facts  will  set  forth  a  cause  of  action  for  the  frnudulenr. 
purchase  oT  IliH  plaintifrs  pro})erty,  and  the  right  to 
damages  for  its  value." 

Assuming  the  facts  of  that  case  to  be  similar  to 
those  constituting  tln^  case  at  bai",  yet  it  does  not  ap- 
pear in  the  said  opinion  that  thequeslion  ht^ie  at  issue 

*  UiJiupoitcd. 


CIVIL    PROCEDURE    REPORTS. 


Kemiiigtoii  Pnper  Co.  v.  O'Dou^^lieity. 


was  raised  or  considered  ;  the  siifflciency  of  the  affida- 
vits having  been  there  determined,  it  would  seem  that 
the  further  statement  recited  in  ;he  opinion  \v;is  obiter, 
and  whatever  maybe  thenatural  inference  to  l)e  drawn 
therefrom,  it  cannot  biing  the  decision  within  the 
doctrine  of  stare  decisis^  as  applicable  to  the  case  at 
bar. 

It  follows  that  the  motion  will  be  granted,  upon 
condition,  however,  that  the  defendant  stipulates  not 
to  sue  for  damages  arising  out  of  the  order  of  arrest. 


THE  REMINGTON  PAPER  COMPANY,  Appel- 
lant, D.  0' DOUGHERTY,  Respoxdent. 

SiTPREME  Court,  Fourttt  Department,  General 
Term,  January,  1884. 

§§  635,  3247. 

Attachment — When  will  not  lie — Judgment  or  statutory  liability  not 

contract. 

In  an  action  brought  against  one  0"D.  to  recover  costs  of  a  former 
action  awarded  to  the  phiiiitifT's  assignor  against  one  J.  P.  O'D. 
the  plaintiff  in  such  former  action,  on  I  lie  ground  that  such  former 
action  \vas  prosecuted  l)y  and  for  the  benefit  of  said  O'D.  in 
the  name  of  said  J.  P.  O'D.  :  Hell,  that  the  only  ground  on  which 
the  right  to  an  att:ichment  could  rest  was  tlmt  the  nciion  was  one 
for  the  recovery  of  damages  for  a  l)reacli  of  contract  expressed  or 
implied;  that  the  defendant  had  made  no  contract  either  v.ilh  the 
plaintiff  or  its  assignor  and  there  was  neither  an  express  nor 
implied  promise;  and  a  warnint  of  attachment  would  not  lie. 

In  such  a  case,  tlie  defendant  is  only  liai)le  for  costs  under  the  statute 
to  the  same  extent  that  she  would  be  if  the  judgment  was  against 
her  personally. 

The  obligation  created  by  a  judgment  or  statute  is,  in  a  certain  sense, 
considered  as  arising  from  an  implied  promise,  but  there  is  no  im- 
plied contract  in  such  case. 


80  CIVIL    PROCEDURE    REPORTS. 


Kcmington  Paper  Co.  v.  O'Doiij^liurty. 


The  class  of  implied  contracls  arising  from  tlio  general  implication 
and  intendraunt  that  every  man  has  eiigagt-d  to  perform  whnt  liis 
duty  or  justice  towards  another  requires,  is,  it  neems,  I  lie  class  of 
implied  contracts  only  to  which  the  statute  authorizing  the  remedy 
by  attachment  is  intended  to  apply. 

{Decided  April,  1884.) 

Appeal  from  an  order  of  the  Jefferson  special  term 
vacating  a  warrant  of  attachment. 

The  opinion  states  the  facts. 

Elon  JR.  Brown^  for  appellant. 

James  A.  Wai'd,  for  respondent. 

Smith,  P.  J. — The  papers  on  which  the  attach- 
ment was  granted  allege  that  the  defendant  lierein, 
for  her  own  use  and  benefit  and  at  her  own  cost,  pros- 
ecuted an  action  brought  in  the  name  of  James  P. 
O'Dongherty  as  plaintiff  against  Illustrious  Reniirjg- 
ton  and  others,  as  defendants,  and  that  said  action  re- 
sulted in  a  judgment  in  favor  of  the  defendants  and 
against  the  plaintiff  therein  for  the  sum  of  8-l.')9.r)3 
costs.  That  the  said  James  P.  O'Dongherty  never  had 
any  interest  iu  said  action  and  was,  and  is,  insolvent, 
and  an  execution  dnl}-  issued  on  said  judgment,  against 
his  property,  has  been  returned  unsatif^lied.  Th;it  the 
defendants  in  that  action  have  assigned  said  judgment 
and  any  chiim  which  they  have  thereon  against  the 
said  Anna  M.  O' Dougherty  to  the  ])laintiff  herein. 

It  may  be  conceded  that  the  defendant  herein  is 
liable  for  the  costs  of  the  former  action,  site  having 
prosecuted  it  in  the  name  of  another  for  her  own  bene- 
fit {Code  Civil  Procedure,  §  3247).  Nevertheless, 
we  do  not  think  the  case  is  one  in  which  a  warrant  of 
attachment  will  lie.  The  only  ground  upon  which  the 
right  to  that  remedy  can  rest,  is  that  the  action  is  one 
for  the  recovery  of  damages  for  bieach  of  contract, 


CIVIL    PROCEDURE    REPORTS.  81 

Remington  Paper  Co.  v.  O'Dougherty. 

express  or  implied.  Code  Civil  Procedure^  §  635.  But 
tlie  defendant  has  made  no  contract  with  the  j^laintiff 
or  its  assignors  ;  she  is  liable  only  by  tlie  x^rovisions 
of  a  statute.  There  is  certainly  no  express  promise  ; 
nor  is  there  an  implied  one.  As  was  said  by  Allen, 
J.,  in  McCoun  v.  N.  Y.  C.  &  H.  R.  R.  Co.  (oO  N.  Y. 
176,180).  "An  imi)lied  promise  or  contract  is  but  an 
express  promise,  proved  by  circnmstantial  evidence. 
It  is  quite  distinct  from  thnt  iiction  by  which  a  statute 
liability  has  been  deemed  sufficient  to  sustain  an  action 
of  assumpsit,  upon  the  ground  that  a  party  subjecting 
himself  to  the-  penalty  or  other  liability  imposed  by 
statute  has  promised  to  pay  it.  That  feature  does  not 
suppose  a  contract,  but  simply  a  promise  exparte.''^ 

At  the  most,  the  defendant  is  only  liable  for  costs 
under  tlie  statute  to  the  same  extent  that  she  would 
be  if  the  judgment  were  against  her  personally.  It  has 
been  held,  repeatedly,  that  a  judgment  is  no  contract, 
nor  can  it  be  considered  in  the  light  of  a  contract ;  for 
judicium  redditum  in  inditum.  Bidleson  v.  Whytel, 
3  Burr.  1.'545  ;  Wyman  v.  Mitchell,  1  Cow.  316,  321. 

In  a  certain  sense,  the  obligation  created  by  a  judg- 
ment or  a  statute,  is  considered  as  arising  from  an  im- 
plied promise — a  promise  necessarily  implied,  as 
Blackstone  expressed  it,  "by  the  fundamental  consti- 
tution of  government,  lo  which  every  man  is  a  con- 
tracting [)arty."  3  Dl.  Com.  150.  And  upon  that  ground 
it  was,  that  under  the  old  form  of  actions;  an  action 
of  debt  could  be  maintained  upon  such  an  obligation 
Id.  But  in  such  cases  there  is  no  implied  contract 
between  the  parties  to  the  action. 

Another  class  of  implied  contracts  arises  from  the 
general  impli(;ation  and  intendment  that  every  man 
has  engaged  to  perform  what  his  duty  or  justice  to- 
ward another  requires.  Of  that  class  is  the  implied 
promise  of  one  who  employs  another  to  work  for  him, 
to  pay  that  other  what  his  work  deserves.  In  cases 
Vol.  VI.— 6 


82  CIVIL    PROCEDURE    REPORTS. 

Haberstich  v.  Fischer. 

of  the  latter  class,  the  law  implies  a  contract  heticeen 
the  parties^  and  to  tliat  class  of  implied  contracts, 
only,  in  our  judgment,  is  the  statute  authorizing  the 
remedy  by  attachment  intended  to  apply. 

Order  appealed  from   affirmed   with   ten.    dollars 
costs. 

Hardin,  J.,  and  Baeker,  J.,  concurred. 


HABERSTICH,    Appellant,   v.  FISCHER,  Re- 
spondent. 

Supreme  Court,  First  Department,  Special  Term, 
April,  1884 ;  also,  General  Term,  May,  1884. 

§  977. 
Notice  of  trial. — WJiat  amounts  to  waiver  of. 

Under  ordinary  circumslances  only  the  party  who  has  noticed  a  cause 
for  trial  can  move  it  for  trial.  ['] 

Where  the  plaintiff  in  an  action  appeared  in  court  by  his  attorney,  on 
a  day  it  was  on  tlie  calendar  and  answered  ready,  and  subsequently 
secured  postponements  of  the  case,  and  endeavored  to  secure  another 
postponement,  which  was  refused,  and  a  jury  directed  to  bo  im- 
paneled, and  up  to  this  point  he  made  no  objection  that  he  had  not 
been  served  with  anotice  of  trial,  Held,  that  he  liad  waived  notice 
of  trial  and  upon  the  plaintiff's  refusal  to  proceed  the  court  was 
clearly  justified  in  directing  a  dismissal  of  the  complaint  ;  that  the 
dismissal  was  regular  and  the  default  could  only  be  opened  on 
terms. 

{Decided,  at  special  term,  April  20,  1884;  at  general  term,  May  30,  1884.) 

Motion  at  New  York  county  special  term,  to  set 
aside  dismissal  of  complaint. 


CIVIL    PROCEDURE    REPORTS.  83 

Hiibersticli  v.  Fischer. 

The  facts  are  stated  in  tlie  general  term  opinion 
which  is  reported  post,  immediately  after  that  of  the 
special  term. 

Henry  H.  Morange,  for  motion. 

W.  H.  &  D.  M,  Van  Cotty  opposed. 

Barrett,  J. — There  was  a  waiver  of  notice  of  trial. 
The  court  acquired  jurisdiction  by  both  parties  an- 
swering ready,  and  one  subsequently  securing  a  post- 
ponement without  objection  as  to  the  notice  of  trial. 
The  dismissal  was  regular,  and  the  default  can  only  be 
opened  upon  terms,  viz.  :  the  term  fee,  disbursements 
of  dismissal  and  costs  of  this  motion. 

From  the  order  entered  on  the  foregoing  decision 
the  plaintiff  appealed. 

Henry  H.  Morange,  for  appellant. 

W.  H.  &  D.  M.  Van  Cott,  for  respondent. 

Daniels,  J. — The  position  taken  by  the  counsel  for 
the  plaintiff,  that  the  party  only  who  has  noticed  a 
cause  for  trial  can  move  it  for  that  purpose,  is  under 
ordinary  circumstances  a  correct  statement  of  the  law 
{Code  Civ.  Pro.  §  977).  But  this  case  differs  in  its  con- 
trolling circumstances  from  those  in  which  this  legal 
proi)osition  has  been  applied.  It  was  first  called  for 
trial  on  Monday,  April  17,  when  it  was  announced  to 
be  ready  by  the  plaintiff's  counsel,  except  that  one  of 
liis  witnesses  was  not  then  able  to  attend.  For  that 
reason  the  trial  was  postponed  until  the  following 
Monday,  when  the  Cause  was  again  called,  and  a  per- 
son representing  the  ptlaintiff's  counsel,  stated  him  to 
be  unwell.    It  was  then  put  over  until  the  next  day 


84  CIVIL    PROCEDURE    REPORTS. 

Ilabersticli  v.  Fischer. 

wirh  a  pererai)tory  direction  that  it  must  then  be  tried. 
On  that  day  this  excuse  was  Repeated  and  in  like  man- 
ner the  case  went  over  to  the  following  day,  with  the 
announcement  that  in  case  the  counsel's  disability  con- 
tinued other  counsel  must  be  engaged  to  try  the  cause 
on  that  day.  The  plaintiff's  counsel  was  on  that  day 
in  attendance  at  the  court  and  applieii  for  a  further 
X)ostponement  of  the  tiial.  This  was  opposed  by  the 
defendant,  who  was  ready  to  proceed,  and  a  Jury  was 
directed  to  be  impaneled.  Up  to  this  point  no  objec- 
tion appears  to  have  been  made  that  the  cause  could 
not  be  moved  for  the  want  of  notice  from  the  defend- 
ant. But  it  had  been  at  all  times  treated  as  entirely 
under  the  control  of  the  court.  There  was  no  ii  regu- 
larity, therefore,  in  impaneling  the  jury,  who  were  iu 
readiness  to  hear  the  cause.  The  plaintiff's  counsel 
Avas  then  directed  to  proceed,  but  declined  to  do  so, 
and  the  complaint  was  thereupon  dismissed. 

The  proceeding  seems  to  have  been  en tirelj' regular. 
The  cause  had  been  specially  set  down  for  the  day  oil 
which  it  was  moved,  and  no  objection  was  taken  to 
the  right  of  the  defendant  to  move  it,  and  acting  upon 
this  apparent  acquiescence  in  his  right  the  jury  uas 
drawn.  The  cause  was,  then,  regularly  before  them, 
andiis  long  as  the  plaintiff's  counsel,  after  that,  simply 
refused  to  proceed  with  the  trial  the  court  was  clearly 
justilied  in  direcring  a  dismissal  of  the  complaint.  It 
could  as  well  be  done  then  as  it  could  if  the  plaintiff 
liad  endeavored  to  make  out  his  right  to  recover  by 
proof  and  had  failed  in  doing  so.  The  court  would 
not,  under  such  circumstances,  be  deprived  of  the 
power  to  dismiss  the  complaint  because  the  defendant 
had  not  served  notice  of  trial.  The  power  was  equally 
as  complete  over  the  action  as  soon  as  the  jury  had 
been  impaneled  and  were  in  readiness  to  proceed  with 
the  trial. 

Upon  a  motion  to  set  aside  the  dismissal,  the  court 


CIVIL    PROCEDURE    REPORTS.  85 

Estate  of  Collins. 

ordered  that  to  be  done  on  the  payment  of  the  costs 
and  disbursements  of  the  term,  together  with  the  costs 
of  the  motion.  This  was  as  favorable  a  dis[)osition  as 
the  plaintiff  could  reasonnbiy  expect,  and  the  order 
should  therefore  be  affirmed,  with  the  usual  costs  and 
disbursements. 

Davis,  P.  J.,  concurred. 


Estate  o^  JOHN  COLLINS,  Deceased. 

^CrEiiOGATP:'s  CouiiT,  KixGs  Coui^TY,  July,  1884. 
§§  388,  396,  1819,  2723. 

Statute  of  limitationg.  —  When  proceeding  for  (ucounting  of  executor^  etc., 
not  barred  by. — Laches. 

Where  tlie  accounts  of  an  executor  or  administrator  have  not  been 
judicially  settled,  a  proceeding  bj'  a  legatee  under  the  testator's 
will,  to  rcquiie  such  executor  or  ndniinistr.-itor  to  render  an  account 
of  his  proceedings  for  the  purpose  of  ascertaining  the  distributive 
share  of  sueli  legatee,  is  not  Ijarred  by  tlie  statute  of  limitations. 

Wliere  a  testator  died  February  10,  18(51,  ami  letters  testamenUiry 
were  issued  April  1,  1801;  an  inventory  tiled  July  8,  IStJl,  and  a 
petition  for  an  accounting  was  filed  in  188-t  by  a  devisee,  who  came 
of  age  Fel)rnary  23,  18T9,  for  the  purpose  of  asccirtaining  her  distrib- 
utive share,  and  there  had  not  been  any  settlement  of  the  exec- 
utor's account, — Ilcld^  that  since  section  1819  of  the  Code  of  Civil 
Procedure  provides  that  the  riglit  to  bring  an  action  to  recover  such 
ft  distributive  share  is  not  deemed  to  accrue  until  the  acoounte  of 
the  executor  or  admiaisti-ator  are  judicially  settled,  the  proceeding 
for  an  accounting  was  not  barred  by  the  statute  of  limitations, — Aho 
7i?lif,  tliat  the  time  which  iiad  elapsed  since  the  petitioner  became 
of  age,  was  not  sufficient  to  justify  a  deuiai  of  the  j)etitiou  on  the 
ground  of  ladies. 

(Decided  July  38,  1884.) 


86  CIVIL    PROCEDURE    REPORTS 

Estate  of  Collins. 

Petition  by  Margaret  J.  Collins,  a  devisee  under 
the  will  of  John  Collins,  deceased,  for  an  accounting 
by  his  executors. 

SuflScient  facts  are  stated  in  the  opinion. 
Man  &  Parsons,  for  petitioner. 
N.  B.  Hoxiej  opposed. 

Bergen,  Surrogate. — This  is  an  application  on  be- 
half of  Margaret  J.  Collins,  one  of  the  legatees  and 
devisees  under  the  will  of  John  Collins,  deceased, 
requiring  the  executors  under  said  will  to  render  an 
account  of  their  proceedings  under  section  2723  of  the 
Code  of  Civil  Procedure 

John  Collins  died  February  16,  1861  ;  letters  testa- 
mentary, were  issued  April  1.  1861  ;  inventory  filed 
July  8,  1861 ;  Margaret  J.  Collins  was  born  on  Febru- 
ary'22,  1858. 

The  executors  answer  that  the  right  of  tliis  proceed- 
ing accrued  to  the  petitioner  at  the  expiiation  of 
eighteen  months  after  the  issuing  of  letters  testamen- 
tary, viz.,  October  1,  1862,  and  that  by  sections  888 
and  396  of  the  Code  she  was  barred  from  commencing 
it  at  the  lime  when  she  filed  the  i)etition  in  this  pro- 
ceeding. 

The  executors,  therefore,  claim  that  the  disability  of 
the  petitioner  ceased  on  February  22,  1879,  the  day 
she  became  of  age,  and  that  by  the  third  sulxlivisior* 
of  section  396  of  the  Code  she  was  limited  to  one  year 
after  tVie  disability  ceased,  in  which  to  bring  her 
action. 

I  think,  however,  tliat  she  is  not  barred  by  the 
statute  of  limitations.  In  the  case  of  House  ?).  Agnte, 
(3  Redf.  3()7),  it  was  held  '^  that  a  petition  in  the  surro- 
gate's court  must  be  filed  within  the  time  in  which 
actions  of  a  similar  character  are  required  to  be  com- 


CIVIL     PROCEDURE     REPORTS.  87 

Estiitc  of  Collins. 

menced  in  courts  of  common  law  or  equity."  The 
same  docti'ine  was  maintained  in  Cole  v.  Tei'penning 
(25  Hwii^  482),  and  other  cases  tlierein  crited.  In  Cole 
7).  Terpenning,  however,  the  petition  for  an  accounting 
was  denied  upon  the  gionnd  that  it  was  barred  by  the 
statute  of  limitations,  but  it  will  be  observed  that  sec- 
tion 1819  of  the  Code  was  not  in  force  at  the  time  the 
l)etition  was  Hied.  Section  1819  of  the  Code  provides  : 
-'  If  after  the  expiration  of  one  year  fi'om  the  granting 
of  letters  testamentarj^  or  letters  of  administration,  an 
executor  or  administrator  refuses,  upon  demand,  to 
l)ay  a  legacy  or  distiibutive  share,  the  person  entitled 
thereto  niaj^  maintain  such  an  action  against  him  as 
the  case  requires.  But  for  the. purpose  of  computing 
the  time  within  such  an  action- must,  be  commenced, 
the  cause  of  action  is  deemed  to  acci'ue  when  the  ex- 
ecutor's or  administrator's  account  is  judicially  settled 
and  not  before." 

There  is  no  doubt  that  this  is  a  proceeding  to 
ascertain  the  distributive  share  of  the  petitioner  in  the 
testator's  estate. 

I  am,  therefore,  of  the  opinion  that  the  last  clause 
of  section  1819  of  the  Code  which  fixes  the  time  when 
the  right  to  an  action  is  deemed  to  have  accrued, 
namely,  when  the  ac(H)unt  of  the  executor  or  adminis- 
trator is  judicially  settled,  and  that  not  having  been 
done  in  this  case,  disposes  of  the  question  of  the  sta- 
tute of,  limitations.  As  to  the  qnestion  of  laches,  I 
think  the  time  which  lias  elapsed  since  the  disability 
of  the  petitioner  ceased  is  not  suthcient  for  me  to  re- 
fuse to  grant  the  prayer  of  the  petition. 

An  order  may  be  entered  requiring  the  executors  to 
account. 


88  CIVIL    PROCEDURE     REPORTS. 


Estate  of  StHgg. 


Estate  of  ANNA  STAGG,  Deceased. 

Surrogate's  Court,  New  York  County,  January, 

1884. 

§§  388,  2723. 

Limitation  to  proceeding  in  sun'ogate's  court  for  accounting. 

Where  on  an  application  by  a  residuary  legatee  for  an  nccounting  by 
an  executor,  it  appeared  that  the  testator  died  in  1861,  and  letters 
testamentary  were  soon  after  issued,  and  that  several  trusts  were 
created  by  the  will,  of  which  the  ext-cutor  was  made  trustee,  the 
income  of  whicli  was  to  be  npplicd  to  tiie  use  of  certuiu  persons, 
and  upon  their  death  the  principal  paid-to^)thers,  among  whom  was 
the  petitioner,  and  tli.it  ci-rtuiu  power  had  been  grante<^l  to  the  exec- 
utor by  the  will  which  it  did  not  apy>eur  had  been  exercised, — Ileldy 
that  the  right  of  the  petitioner  to  an  accounting  was  not  barred  by 
the  statute  of  liniitationsand  that  the  executor  should  be  required  to 
account  notwithstanding  liis  answer  (h;elared  that  "all  the  legacies 
wiiich  were  payable  under  the  provisions  of  the  will  liave  been  paid 
and  the  whole  estate  distributed  to  those  entitled  thereto  according 
to  said  will." 

{Decided  January  30,  1884.) 

Application  for  an  order  that  an  executor  file  an 
account  of  his  proceedings. 

The  facts  are  stated  in  the  opinion. 

Rollins,  S. — This  is  a  proceeding  whereby  ilie 
residuary  legatee  of  decedent,  seeks  to  obtain  lui 
accounting  from  the  surviving  executor.  Anna  Sttigg 
di(t'd  in  1801,  sirid  soon  nftenvrird  letters  testamentary 
were  issued  to  this  res[)ondent  as  ex(^ctjtor,  and  to 
('aroline  S.  Stagg  as  executrix.  The  latter  died  in 
1876.     The  responding  executor  has  interposed  an  an- 


CIVIL    PROCEDURE    REPORTS.  89 

Estate  of  Stagg. 

swer  claiming  that  the  petitioner  is  barred  by  the  stat- 
ute of  limitations  from  enforcing  the  claim  wliicli  he 
here  sets  iij),  and  that,  even  if  it  be  otherwise,  his 
demand  for  an  accounting  after  the  lapse  of  so  many- 
years  is  unreasonable,  and  that  the  surrogate  ought, 
in  his  discretion,  to  discountenance  it.  The  answer 
also  declares  that  "all  the  legacies  which  were  pay- 
able under  the  provisions  of  the  will  have  been  paid, 
and  the  wljole  estate  distributed  to  those  entitled 
thereto  according  to  said  will."  It  contains  no  defin- 
i,te  statement  as  to  what  legacies  have  been  paid  nor  as 
to  how  the  estate  has  been  distributed. 

Upon  examining  the  record  of  the  will  I  find  that 
the  testatrix  created  several  trusts  whereof  she  made 
her  executor  and  executrix  trustees,  directing  that  the 
income  of  those  trusts  respectively  should  be  applied 
to  the  use  of  a  specified  person,  and  that  upon  the 
death  of  such  person,  the  principal  should  be  paid  to 
another.  Some  of  these  provisions  are  in  favor  of  the 
petitioner.  By  one  of  them  she  is  made  sole  residuary 
legatee.  By  the  sixteenth  clause  of  the  will  the  exec- 
utors are  "authorized,  directed  and  fully  empowered, 
whenever  they  may  think  it  most  advantageous  and 
prudent  so  to  do,  to  sell  all  or  any  part  of  my  real 
estate  at  public  or  private  sale  u|7on  such  terms  as  they 
may  deem  proper."  It  does  not  appear  whether  or 
not  this  power  has  been  exercised.  Upon  the  disclos- 
ures of  the  petition,  the  answer  and  the  will  itself 
I  cannot  find  that  the  petitioner's  claim  is  barred  by 
the  statute  of  limitations. 

The  cases  cited  by  the  respondent's  counsel  simply 
hold  that  when  the  time  has  arrived,  that  a  legatee  has 
a  right  to  demand  the  payment  of  his  legacy,  the  sta- 
tute of  limitations  begins  to  run,  and  that  after  the 
period  of  limitation  has  expired  the  legatee  can  no 
longer  enforce  his  claim  for  the  legacy  or  for  an  ac- 
counting.    See  McCartee  «.  Camel,  1  Barb.  Cli.  455  ; 


90  CIVIL    PROCEDURE    R  IMPORTS. 

United  States  Trust  Co.  v.  N.  Y.,  &c.  Rw.  Co. 

Clock  V.  Cbadeague,  10  Bun,  97  ;  Clarke  v.  Ford,  1 
Abb.  CI.  Ap.  Dec.  359  ;  Loder  v.  Hatlield,  71  JV.  Y. 
92  ;  Warren  v.  Palf,  4  Brad/.  260. 

In  the  piesent  case,  tor  aught  that  appears,  the 
petitioner  may  not  3'et  have  become  entitled  to  all  that 
is  given  her  under  the  will. 

I  must  therefore  direct  an  accounting,  unless  vt^i thin 
ten  day?  the  respondent  liles  an  amended  answer  set- 
ting up  other  facts^in  support  of  the  claim  that  he  is 
within  the  protection  of  the  statute  of  limitations. 


UNITED    STATES    TRUST   COMPANY   OF   NEW 

YORK  V.  THE   NEW    YORK,   WEST    SHORE 

AND  BUFFALO  RAILWAY  COMPANY, 

and  anotiikh. 

Supreme  Court,  New  York  County,  Special  Term, 
August,  1884. 

§§  709,  1810. 

Receiver  of  corporation. — In  what   dutrict   motion  for  appointment  of 
to  he  made. — Action  to  foreclose  mortgage.  —  When  party  in  in- 
terest not  pai'ty  to  action  may  apply  to  court  for 
2jrotection  oj  his  interest. 

One  not  a  party  to  an  action  who  is  a  party  in  intc-rcst,  and  who  may 
be  injuriously  affected  l)y  an  unhnvfiil  proceeding  in  tlie  suit,  may 
apply  to  the  court  for  that  degree  of  protection  which  his  interests 
require  should  be  extended  to  liini.[*J  Accordingly  held,  that  a  per- 
son holding  bonds  of  a  railway  company  secured  by  a  mortgage, 
made  to  a  trustee,  could  intervene  in  an  action  to  foreclose  it,  and 
although  not  a  party  thereto,  move  to  set  aside  an  order  appointing 
receivers  on  the  ground  of  want  of  jurisdiction  in  the  judge  making 
it,  and  for  an  order  appointing  a  receiver. [',  *,  *,  •] 


CIVIL    PROCEDURE    REPORTS.  91 

United  States  Trust  Co.  v.  N.  Y.,  &c.  Rw.  Co.  -i 

In  a  case  where  a  railway  corporatiou  has  given  a  mortgage  to  a  trus- 
tee to  secure  bonds  issued  by  it,  tiie  trustee  represents  the  owners 
and  holders  of  the:  bonds  and  must  usually  be  the  party  in  whose 
name  and  by  whom  legal  proceedings  for  their  protection  and  col- 
lection sliould  be  carried  on,  but  when  the  trustees  become  a  party 
to  an  unlawful  proceeding,  injurious  to  tiic  ri<>lits  of  the  benefi- 
ciaries the  latter  are  empowered  to  take  such  action  for  their  own 
vindication  and  protection  as  the  necessities  of  the  case  seem  to 
require,^]  and  for  this  purpose  it  is  not  necessary  that  the  trustees 
should  be  actuated  by  any  improper  motive  or  controlled  by  any 
injurious  influence,  but  it  is  sufficient  that  he  has  identified  himself 
with  an  unlawful  proceeding  of  which  the  beneficiaries  have  a  just 
right  to  comj)lain.[=,  *j 

An  order  made  by  a  judge  having  no  jurisdiction  over  the  subject 
contained  in  it  is  absolutely  inoperative  and  void,  and  may  be  either 
vacated  or  disregarded  in  any  other  legal  jjroceeding  regularly  taken 
in  the  action  in  which  tlie  order  was  madc.["] 

Section  769  of  the  Code  of  Civil  Procedure, — which  designates  the 
counties  in  which  motions  in  actions  should  be  made, — is  modified, 
and  so  far  as  it  applies  to  motions  for  tlie  appointment  of  receiv- 
ers of  corporations,  superseded  by  Laws  of  1883,  chap.  378,  §  1, 
which  provides  where  such  motions  shall  be  made,  ['"j 

Section  1  of  chapter  378  of  the  Laws  of  1883,  which  provides  that 
"every  application  ....  for  the  appointment  of  a  receiver  of  a 
corporation  shall  be  made  at  a  special  term  of  the  court  held  in  and 
for  the  judicial  district  in  which  the  principal  business  office  of 
the  corporation  was  located  at  the  commencement  of  the  action, 
wherein  such  receiver  is  appointed,  or  in  and  for  a  county  adjoin- 
ing such  distiict;  and  any  order  appointing  a  receiver  otherwise 
made  shall  be  void,"[''-]  includes  every  application  for  the  appoint- 
ment of  a  receiver  of  a  corporation  made  after  its  enactment,  ["J  and 
a[)plies  to  an  action  against  a  corporatiou  to  foreclose  a  mort- 
gage. ['^] 

Whether  a  receiver  is  designated  a  receiver  of  the  property  of  a  cor- 
poration, or  a  receiver  of  a  corporation  the  elTect  is  precisely  the 
sanu',['"]  and  the  fact  that  section  1  of  chapter  378  of  the  Laws  of 
1883,  refers  to  receivers  of  corporations,  docs  not  prevent  its  apply- 
ing to  receivers  in  actions  to  foreclose  mortgages,  because  they  are 
designated  receivers  "  of  the  property  of  a  corporation  "  in  section 
1810  of  the  Code  of  Civil  Procedure,  which  authorizes  their  appoint- 
ment.['^] 
Where  one  named  as  the  receiver  of  the  property  of  a  corporation  in 
au  order,  void  because  the  judge  who  made  it  had  not  jurisdictioo, 


92  CIVIL    PROCEDURE    REPORTS. 

United  States  Trust  Co.  v.  N.  Y.,  &c,  R\v.  Co. 

entered  upon  tlie  discliiirf»e  of  the  duties  of  tiiat  oiHfc.  and  it 
a|)i><':iieil  tliat  to  discoiitimie  or  supcrcedo  liis  employment  would 
bt;  <.l  no  b(!iiefit,  but  u'ould  cuuse  disturbance,  interruption  nnd 
(■t;ii>!:rras.smenl  in  tlie  niMnaj^etnent  of  the  Jiffairs  and  tlie  transaction 
of  llie  business  of  llie  corporation, — Held,  that  a  subsequent  order 
lau- fully  made  appointing  a  receiver,  should  name  liim  as  re- 
ceiver. ['»] 

W'eetjen  r.  Vibbard  (5  Uun,  26o);[M  Brinokerhoir  r.  Bostwick  (88 
N.  7.  o2);[']  Jlawes?!.  Oakland  (104  U.S.  450);!")  Kamp  b.  Kamp 
(59  iV.  Y.  212),  ["J  followed.  Whitney  v.  N.  Y.  ct  Atlantic  R.  R. 
Co.  (5iV^.  Y.  Civ.  Pro,  118):['°]  Wilkinsons.  North  River  Construc- 
tion Co.  (GO  Il'W:  Pr.  42y);['^J  Phoenix  Foundary  &  ]Miichitie  Co. 
«.  Same  (G  JV.  Y.  Civ.  Pro.  10(i);[''J  Woerishotli-r  v.  Same  (6  Id. 
113);[''']  Attrill  v.  Rockaway  BeacU  Improvemeni  Co.  (25  Hun, 
876),  ['«j  disiinfjuisijed. 

{Decided  Avgud  29,  1884.) 

Motion  by  Deni.s  O'Bi'ien,  attorney  jxenenil,  and  by 
AVarren  Cnnier  and  James  P.  SSntton,  owners  of  bonds 
issued  by  the  railway  company,  defetKhuU,  to  vacate 
and  set  aside  an  order  appointing  Theodoje  Houston 
and  Horace  Russell  receivers  of  tlie  property  of  said 
defendant,  and  for  the  appointment  of  one  or  more 
receivers  thereof. 

The  facts  are  stated  in  the  opinion.  * 

William  II.  Fosie.,  deputy  attorney-general,  John 
L.  Ilill^  Frederick  R.  Ooudcrt  and  WilUain  L. 
Tamer.,  for  the  motion. 

Stewart  &  Boardman.,  P.  B.  McLennan  and  O.  B. 
Alexander.,  opposed. 

Damiels,  J. — The  action  has  been  brought  to  fore- 
<!lose  a  mortgage  executed  and  delivered  by  the  rail- 
\vay  comp;iny,  to  the  United  States  Trust  Company  of 
the  city  of  New  York,  to  secure  the  issue  of  bonds  to 
an  amount  not  exceeding  the  sum,  in  the  aggregate, 
of  ^50,000,000.     By  the  mortgage,  all  the  property  at 


CIVIL    PROCEDURE    REPORTS.  93 

United  States  Trust  Co.  v.  N.  Y.,  &c.  Kw.  Co. 

the  time- when  It  was  given  owned  by  the  railway  com- 
pan3%  and  which  should  afterwards  be  acquired  by 
it,  together  with  its  corporate  franchises  of  every 
name  and  nature,  relating  to  its  railway,  including  the 
franchise  to  operate  it,  were  mortgaged  as  security  for 
the  payment  of  the  bonds.  It  was  alleged  that  the 
railway  company  had  failed  to  perform  certain  of  the 
stipulations,  or  covenants,  contained  in  the  mortgage, 
and  that  the  right  to  foreclose  it  had  consequently 
accrued  to  the  X)laintiff.  And  these  allegations  have 
not  been  denied  by  the  railway  company. 

The  railwa}"  in  part  extended  through  the  county 
of  Orange,  and  thatcounty  was  accordingly  designated 
as  th6  place  of  trial  of  the  action,  and  it  was  at  a  spe- 
cial term  of  this  court,  held  in  that  county,  that  a 
motion  was  made  for  the  appointment  of  receivers  of 
the  property  of  the  railway  company.  Upon  that 
motion,  which  was  not  opposed — and  the  attention  of 
the  court  was  not  specially  directed  to  its  authority  in 
the  case — receivers  ot"  all  the  property  and  franchises 
of  the  railway  company  were  appointed,  with  the  ordi- 
nary and  usual  powers  and  authority  vested  in  receiv- 
ers in  such  cases.  This  order  is  assailed  in  this  pro- 
ceeding as  having  been  made  without  jurisdiction  in 
the  coui't  under  whose  authority  it  was  directed  and 
entered,  and  it  is  for  that  lenson  that  this  ap])lication 
has  been  made  to  vacate,  annul  or  disregard  the  order 
and  appoint  one  or  more  receivers  of  the  property  of 
the  railway  company.  The  attorney  general  became  a 
party  to  the  application,  under  the  authority  of  sec- 
ti<m  7  of  chapter  378  of  the  Laws  of  1883,  His  right 
to  do  so  has  been  resisted  by  the  counsel  representing 
the  i)Iaintilf.  the  persons  appointed  receivers  and  the 
defeiidant,  upon  the  ground  that  the  proceeding  was 
not  taken  against  the  defendant  as  an  insolvent  corpo- 
ration, although  it  is  shown  to  have  been  insolvent  as 
a  matter  of  fact.     It  probably  will  not  become  neces- 


94  CIVIL    PROCEDURE    REPORTS. 

■' '   I 

United  Slates  Trust  Co.  v.  N.  Y.,  &c'.  Rw.  Co.  ' 

sary  to  determine  whether  this  objection  is  well 
founded  or  not,  for  the  reason  that  if  the  art(>rney 
general  had  no  authority  to  intervene  under  this  or 
any  other  provision  of  the  statutes,  the  application 
has  been  properly  made  by  and  on  behalf  of  two  of 

the  persons  holding  and  owing  bonds  of  the  rail- 
[']     way   company  secured  by   the  mortgage.     Their 

interests  require  that  they  should  be  [)rotected  by 
proceedings  legally  sustained,  in  order  to  subserve  and 
promote  the  proper  administration  and  disposition  of 
the  property  of  the  corporation,  and  if  the  persons 
named  in  the  order,  to  which  reference  has  been  made, 
were  not  legally  appointed  receivers  of  the  railway 
company,  they  have  a  just  ground  of  complaint  ;  for 
the  administration  of  such  persons,  if  they  have  no 
lawful  authority,  may  be  injurious  or  prejudicial  to  the 
interests  of  the  persons  holding  the  bonds  of  the  cor- 
poration, and  when  a  i)arty  in  interest,  although  not 

a  party  to  the  action,  may  be  injuriously  affected 
[']     by  an  unlawful  proceeding  in   the  suit,   he  may 

apply  to  the  court  for  that  degree  of  protection 
which  his  interests  require  should  be  extended  to  him. 
Gould  V.  Mortimer,  26  How.  Ft.  107.* 

In  a  case  of  this  description,  the  trustee  in  the 
[*]     mortgage  represents  the  owners  and  holders  of  the 

bonds,  and  must  usually  be  the  ])aity  in  whose 
name  and  by  whom  legal  proceedings  for  their  protec- 
tion and  collection  should  be  canied  on,  but  when  the 
trustee,  even  without  any  sinister  motive,  may  become 
a  party  to  an  unlawful  proceeding  injurious  to  the 
rights  of  the  beneficiaries,  the  latter  are  empowered 
to  take  such  action  for  their  own  vindication  as  the 
necessities  of  the  case  may   set-m    to   rcquiie.     When 

the  trustee  has  committed  itself,  as  it  did  in  the 
[*]     present  instance,  to  a  proceeding  alleged  to  have 

*  S.  C,  16  Ahh.  Pr.  448. 


CIVIL    PROCEDURE    REPORTS.  95 

United  States  Trust  Co.  v.  N.  Y.,  &c.  Rvv.  Co. 

been  unlawful  and  unjinthorized,  and  continues  to 
assert  its  legal  validity,  there,  if  it  really  be  nnlawful, 
a  case  apparently  arises  which  will  justify  tlie  inter- 
vention in  their  OAvn  behalf  of  the  persons  entitled  to 
tlie  benefit  and  piotection  of  the  trnst.  For  this  pur- 
pose it  is  not  requisite  that  the  trustee  should  be 
[']     actuated  by  any  improp)er  motive  or  controlled  bj' 

any  injurious  influence,  but  it  is  sufficient  that  it 
has  identified  itself  with  an  unlawful  proceeding  of 
which  the  beneficiaries  have  a  just  right  to  complain, 
to  entitle  them  to  apply  in  their^  own  behalf  to  the 
court  for  that  degree  of  protection  which  their  legal 
or  equitable  interests  appear  to  require. 

This  subject  was  considered  in  AVeetjen  v.  Vibbard 

(5  Hun,  265),  and  it  was  there  held  that  active 
[']     participation  even  in  a  wrong  is  not  required  to 

make  a  trustee  a  party  to  it,  but  silent  connivance 
will  be  sufficient  for  the  purpose,  when  it  may  be 
observed  to  afford  the  means  of  rendering  the  miscon- 
duct of  others  successful  {Id.  267).  When  that  may 
be  the  fact,  and  the  trustee  continues  to  endeavor  to 
maintain  it,  there  a  necessity  arises  for  the  benefici-. 
aries  themselves  to  apply  in  their  own  behalf  for  the 
proper  redress  which  may  be  afforded  by  the  law. 
This  general  subject   was  considered  in  Brincker- 

hoff  '«.  Bostwick,  (88  iV^.  Y.  52),  w^here  it  was  held 
[^J     that  if  a  corporation  itself  refused   to  prosecute, 

"or  if  it  still  remained  under  the  control  of  the 
very  directors  against  whom  the  action  should  be 
brought,  the  stockholders  would  have  a  standing  in  a 
court  of  equity  to  sue  in  their  own  names,  making  the 

corporation  a  party  defendant"  {Id.  56).  And 
[^J     the  same    priuciph^  is  maintained   by   Hawes    v. 

Oakland  (104  U.  S.  450). 
If,   therefore,    the   order  for   the   appointment   of 
receivers  was  made  without  authority  in  the  court  to 
which    the    apiilication  for    it  was   directed,    as    it 


96  CIVIL     PROCEDURE     REPORTo. 

United  States  Trust  Co.  v.  N.  Y.,  Ac.  Rw.  Co. 

[•]  resuUed  from  the  action  of  the  plaintitF  itself,  and 
it  still  asserts  and  maintains  the  regularity  of  the 
proceeding,  a  case  seems  to  be  made  out  by  the  facts 
authorizing  the  owners  and  holders  of  the  bonds 
secured  by  the  mortgage  and  affected  by  the  order  to 
apply  to  the  court  for  such  redress  and  protection  as 
the  circumstances  and  the  law  applicable  to  them  re- 
quire in  the  case. 

It  has  been  further  objected  that  if  the  motion 
could  be  regularly  made  by  or  yiw  behalf  of  these 
parties,  that  it  should  be  made  within  the  district  in 
whicli  the  action  itself  is  triable,  or  in  an  adjoining 
county,  as  that  is  in  terms  directed  by  section  769  of 
the  Code  of  Civil  Procedure  ;  and  if  the  application 
was  controlled  by  this  section  the  objection  would  cer- 
tainly be  well  founded.  But  this  has  been  answered 
by  the  fact  that  the  principal  business  office  of  the 
railway  company  was  located,  at  the  time  of  the  com- 
mencement of  the  action,  in  the  city  of  New  York, 
and  that  under  section  1  of  chapter  378  of  the  Laws 
of  1883,  the  motion  could  be  regulaily  made  there.  If 
this  section  is  applicable  to  the  case,  then  the  motion 
has  been  properly  made  in  the  first  judicial  district, 
foi'  in  tlie  class  of  cases  included  in  the  sfctic^n  it 
['"]  has  modified,  and  to  that  extent  supeiseded,  the 
direction  contained  in  section  709  of  the  Code. 
Whether  the  motion  has  been  regnlaily  brought  on  in 
the  first  judicial  district  must  therefore  depej)d  u[)on 
what  is  to  be  considered  the  true  construction  of  this 
section  of  the  act  of  1883,  and  that  will  more  appro- 
priately be  considered  after  disposing  of  another 
point  presented  by  way  of  answer  to  the  motion. 

If  the  order  was  made  by  a  court  having  no  juris- 
diction over  the  subject  contained  in  it,  then  it  is 
["]  absolutely  inoperative  and  void,  and  it  may  be 
either  vacated  or  disregarded  in  any  other  legal 
proceeding  regularl}'-  taken  in  the  action.     This  sub- 


CIVIL    PROCEDURE     REPORTS.  97 

tJnited  States  Trust  Co.  v.  N.  Y.,  &c.  R\v.  Co. 

ject  was  considered  in  Knmp  v.  Kamp  (59  N".  Y.  212), 
wliere  it  was  Iield  that  when  tht'  couit  is  entirely  with- 
out jurisdiction,  "  the  whole  proceeding,  including  the 
order  or  judgnieni,  is  coram  nonjud/ce  and  void.  One 
is  not  bound  to  appeal  from  a  void  order  or  judgment, 
but  may  resist  it,  atid  assert  its  invalidity  at  all  times" 
{M:  215  ;  Hall  v.  U.  S.  Reflector  Co.,  31  IJtm,  609, 
611).*  . 

If,  therefore,  this  order  was  made  without  jurisdic- 
tion, and  the  plaintifT  insists,  as  it  does,  upon  its  va- 
liditj^,  the  applicants  have  the  riglit  to  apply,  as  they 
have,  for  the  ai)poiutment  of  one  or  more  leceivers, 
notwithstanding  the  making  of  the  order;  and  as  inci- 
dental to  and  forming  part  of  the  application  it  may 
be  determined,  if  that  is  its  chaiacter,  that  the  order 
in  controversy  is  void  for  want  of  jurisdiction  in  the 
tribunal  making  it. 

The  i)oint  is  accordingly  pi-esented  whether  the 
order  must  be  so  regarded,  and  that  })resents  for  con- 
sideration the  construction  which  should  be  given  to 
chapter  578  of  the  Laws  of  1883.  If  by  this  act  the  ap- 
plication for  the  ap[)ointment  of  receivers  should  be 
made  in  the  judicial  district  in  which  the  principal 
business  office  of  the  railway  conii)any  was  located  at 
the  commencement  of  the  action,  or  in  an  adjoining 
county,  then  tliisorder  was  made  without  jurisdiction 
and  it  is  void  ;  for  Oiange  county,  where  the  order 
was  made,  is  not  an  adjoining  county  of  the  county  of 
New  Yolk,  in  which  the  principal  business  otGce  of 
f!;e  raihv;;j'  company  has  been  located.  That  is  the 
clear  effect  vl  the  concluding  part  of  section  one  of  this 
act.  This  section  is  exceedingly  broad  and  general" in 
its  terms,  as  much  so,  probably,  as  language  was  cap- 

*  Reversing  S.  C,  4  2f.  T.  Civ.  Pro.  148.  Tlio  decision  of  tlie 
general  term  was  affiimeil  by  the  court  of  appeals,  without  opinion, 
May  6,  1884. 

VcL.  VI.— 7 


98  CIVIL  procp:dure  reports. 

United  States  Trust  Co,  v.  N.  Y.,  &c.  Rw.  Co.* 

able  of  TTinkingit.     It  has  been  enacte?d  in   the  follow- 
ing terms : 

"*Every  application  hereafter  made  for  the  ap- 
['*]  pointment  of  a  receiver  of  a  corporation  shall  be 
made  at  a  special  term  of  the  coint  lield  in  and 
for  the  judicial  district  in  w-hich  the  principal  bnsines=s 
office  of  the  corporation  was  located  at  the  commence- 
ment of  the  action  wherein  snch  receiver  is  appointed, 
or  in  and  for  a  county  adjoining  such  district;  and 
any  order  appointing  a  receiver,  otherwise  made,  shall 
be  void." 

And  it  was  in  express  language  directed  to  include 
every  application  for  the  apx^nntment  of  a  re- 
['*]  ceiver  of  a  corporation,  made  after  its  enactment. 
Tljis  broad  language  is  to  be  applied  and  enforced 
according  to  the  usual  understanding  and  imiiori  of 
the  terms  made  use  of,  and  as  they  have  been  sub- 
jected to  no  exception  whatever,  the  court  cannot  add 
an  exception  without  usurping  the  province  of  the  le- 
gislature, over  which  it  has  no  control.  Neither  can 
the  construction  and  effect  of  the  terms  be  limited  or 
restricted  by  any  supposed  policy  not  indicated  in  the 
act  itself.  What  the  court  is  required  to  do,  with 
this  as  well  as  other  statutes,  is  to  ascertain  from  the 
language  employed  the  intention  of  the  legislature, 
and,  when  that  is  ascertained,  to  carry  it  into  efl'ect, 
as  it  may  be  ex])ressed  or  indicated  by  the  law.  In 
this  instance  the  legislature  has  declaied  the  intention 
to  be  to  include  every  application,  after  the  passage  of 
the  act,  made  for  the  ap[)ointment  of  a  receiver  of  a 
corpoiation.  And  this  language  is  so  broad  and 
["]  general  as  to  include  an  ai)j)lication  for  the  ap- 
pointment of  a  receiver  in  an  action  for  the  I'oie- 
closure  of  a  mortgage  of  this  descriptifju.  The  power 
to  appoint  such  a  receiver  has  been  expressly  given  by 
section  1810  of  the  Code  of  Civil  Procedure,  and  with- 
out that  it  was  within  the  acknowledged  jurisdiction  of 


CfVIL    PROC^DXJHE    REPORTS.  99 

United  States  Tinist  Co.  v.  N.  Y.,  &c.  Rw.  Co. 

this  court,  as  a  court  of  equity  (Hallenbeck  v.  Donnell, 
94  JV.   Y.  342). 

But  by  this  section  of  the  Code  the  receiver  has 
been  desi<^na  ted  as  "  a  receiver  of  the  property   of  a 
corporation,"  and   this  phraseology   has  been  relied 
upon  as  distinguishing  tiKj  case  of  such  a  receiver  from 
"a  receiver  of  a  corporation,"  as  the  words  have  been 
made  use  of  in   the  act  of  1883.     But  that  these  are 
convertible  terms,  and  have  been  intentionally  used  as 
such  and  require  x^i'^ctically  the  same  construction, 
appears  from  other  provisions  contained  in  the  Code 
of  Civil  Procedure.     For  by  sections  1784  and  1785, 
atjtions  have  been  provided,  first,  in  favor  of  judgment 
creditors  for  sequestrating  the  property  of  a  corpora- 
tion and  i)roviding  for  the  distribution  thereof,  and 
S(^condly,  for  the  dissolution  of  a  corporation  because 
of  its  insolvency,  or  the  suspension  of  its  ordinary 
and  lawful  business,  or  its  neglect  or  refusal  for  one 
year  to  discharge  ifs  notes  or  other  evidences  of  debt. 
And  by  section  1788  it  has  been  provided  that  receivers, 
in  such  actions  may  be  appointed,  and  the  judgment 
in  both  classes  of  cases — when  the  actions  maj^  proceed 
s6  far — are  practicalh^  the  same,  and  must  provide  for 
a  just  and  fair  distribution  of  the  property  of  the  cor- 
poration and  the  proceeds  thereof  among  its  fair  and 
honest  creditors  {Code  of  Civil  Procedure,  §  1793). 
Such  receivers  as  these  would  very  clearly  be  receivers 
of   the   corporation   itself,  although  designated   "re- 
ceivers of  the  property  of  the  corporation"  by  section 
1788,  and  they  are  plainly  intended  to  be  within   that 
'pftrt  of  the  act  of  1883  which  follows  its  fifth  section.  A 
like  receivership  has  also  been  provided  in  proceedings 
for   the  voluntary  dissolution  of  a  corporation,  and 
when  appointed  the  officer  has  been  designated  as  a 
receiver  of  its  property  {Code,  §  2429). 

The  language  of  section   1810   was   therefore   not 
selected  as  being  peculiarly  appropriate  to  a  receiver 


100  CIVIL    PROCEDURE    REPORTS. 


United  States  Trust  Co.  v.  N.  Y.,  &c.  liw.  Co. 

appointed  in  an  action  for  the  foreclosure  of  a  mort- 
gu<i:e,   but   as   properly  descriptive  of  an  officer   who 
should  be  authorized  to  take  charge  of  the   pioperty 
of  the  corporation.     If  it  had  been  intended  by    these 
terms  to  distinguish  such  a  receiver  from  a  receiver 
appointed  in  an  action  for  the  dissolution  of  a  corpo- 
ration or  a  sequestration  of  its   property  under  the 
other  i)rovisions  of  the  Code,  the   same  phrnseology 
would  not  there  have  been  made  use  of,  but  language 
would  have  been  employed  which  would  have  distin- 
guished one  class  of  receivers  from   the  other.     Tluit 
was  not  done,  but  the  phraseology  is  identical,  which 
is  applicable  to  all  classes  of  corporate  receivers  pro- 
Tided  for  by  the  Code,  and  they  are  in  general   terms 
designated  to  be  receivers  of  the  property  of  the  corpo- 
ration, and  as  usually  understood  and  construed  these 
terms  are  the  mere  equivalent  of   the   language   em- 
ployed in  the  enactment  of  section  1  of  the  act  of  1883. 
For  when   a  receiver  may   be   appointed   under   the 
authority  of  this  section  he  will  take,  by  virtue  of  his 
appointment,  no  more  than  he  could  under  either  of 
the  provisions  of  the  Code  of  Procedure,  or  than  were 
in  terms  declared  to  be.vested  in  the  receivers  by   the 
order  in   this  action.     The  object  as  well  as   the 
["]   authority  of  the-teeeiver  of  a  c()ii)()ration  or  of  a 
*  receiver  of  the  property  of  a  corporation  are  pre- 
cisely the  same,  for  the  corporation  can  have  no  more 
than  can  be  placed  in  the  cnstody  or  under  the  control 
of  the  receiver,  than   its   projjerty,   effects  and   fran- 
chises  as    they    have   been    included    in    this    order. 
Whether,  therefore,  the  law  designates  the  leceiver  te 
be  a  receiver  of  the  ju'ojierty  of  a  corporation   or  a 
receiver  of  a  corporation,  as   the  language    has  been 
used  in  the  act  of  1888,  the  effect  is  precisely  the  same, 
and  no  tangible-ground  exists  for  distinguishing   (he 
langjuige  employed  in  this  statute  from  that  made  use 
of  in  the  Code  of  Civil  Procedure,  and  no  exception  is 


CIVIL    PROCEDURE    REPORTS.  101 

United  States  Trust  Co.  v.  N.  Y.,  &c.  llw.  Co 

therefore  permitted  by  the  act  of  1883  from  the  p:en- 
erality  of  its  provisions,  by  reason  of  the  circumstance 
that  the  receiver  in  an  action  of  this  nature  has  been 
designated  by  the  Code  ns  a  receiver  of  the  property 
of  the  corporation.  No  restruint  or  limitntion  on 
account  of  this  mere  difference  of  expression  can  be 
imposed  upon  the  very  com[)rehensive  language  of  the 
first  section  of  the  act  of  1883,  but  it  must  be  read  :is 
it  has  been  expressed  by  the  legislature,  to  include 
every  application  made  after  its  passage  for  the  ap- 
pointment of  a  receiver  of  a  corporation  or  of  the  prop- 
erty of  a  corporation,  which,  in  legal  effect  as  well  as 
poi>ular  understanding,  would  be  the  same  thing. 

If  this  receivei'shii)  should  be  excluded  from  sec- 
tion 1  of  the  act  of  1S83,  because  of  this  difference  of 
expression,  all  leceivers  of  corporations  should  to 
whom  it  has  been  applied  in  the  Code,  for  all  are 
described  and  designated  in  the  same  language.  And 
that  would  completely  nullify  this  parr  of  that  act, 
and  wholly  defefLt  the  purpose  of  the  legislature  in  en- 
acting it.  It  would  leave  nothing  whatever  for  it  to 
operate  upon;  and  that  courts  are  not  at  liberty  to 
do. 

It  has  been  urged  that  the  case  of  Whitney  v.  N.  Y. 
["]  &  Atlantic  R.  R.  Co.  (5  N.  Y.  Clr.  Fro.  118),  is  at 
variance  with  this  construction,  but  in  that  case  the 
effect  of  section  8  of  cliapter  378  of  the  Laws  of  1883, 
was  alone  before  the  court  for  its  consideration,  and 
the  terms  of  that  section  were  then  deeme<l  to  be  inap- 
plicable to  a  motion  for  the  appointment  of  a  receiver 
of  a  corpoiafion  in  an  action  for  the  foi'eclosure  of  its 
mortgage.  That  const) uction  was  deemed  proper  for 
the  reason  that  the  secti()n  itself  was  framed  in  such  a 
manner  as  to  include  within  its  langtiage only  jiroceed- 
ings  for  the  dissolution  of  a  corpoiation,  or  the  distri- 
bution of  its  assets,  and  as  the  proceeding  in  this  ac- 
tion is  controlled  by  section  1   of  the  act,  which  con- 


10«  ,  CIVIL    PROCEDURE    REPORTS. 

United  States  Trust  Co.  v.  N.  Y.,  &c.  Rw.  Co. 

' — ■ T —  ■  '        -    ■     ■  —     ■  * 

tains  no  sncli  qualification,  but  is  more  general  in  its 
language,  this  decision  is  inapplicable  to  the  present 
motion. 

The  sections  following  section  5  of  the  act  refer  in 
terms  to  insolvent  corpoiations,  bnt  they  contain 
nothing  evincing  it  to  be  designed  by  the  legislature 
that  the  broad  language  of  section  1,  and  of  the  others 
immediat(^ly  following  it,  should  be  subordinated  to 
this  restriction.  The  nature  and  object  of  these  parts 
of  the  act  seem  to  have  been  intended  to  be  different, 
for  by  the  provisions  contained  in  the  first  and  the 
three  succeeding  sections,  all  receiverships  of  corpora- 
tions have,  in  express  language,  been  inclnded,  while 
the  provisions  made  by  section  6,  and  those  succeed- 
ing it  to  the 'eleventh  section  of  the  act,  have  been 
specially  framed  to  meet  the  cases  of  insolvent  cor- 
porations, and  to  direct  what  should  be  the  practice  in 
that  class  of  cases.  These  sections  contain  no  lan- 
guage or  intimation  restricting  the  terms  or  effect  of 
the  precetiing  sections  of  the  act  to  the  same  class  of 
corporations,  the  formei' })ioviding for  receivers  of  all 
corjwrations,  and  the  latter  regulating  the  course  of 
practice  to  be  observed  in  proceedings  taken  for  the 
dissolution  or  distribution  of  the  assets  of  a  corpora- 
tion. Why  this  distinction  has  been  made  is  not  ex- 
l)lained  by  any  language  contained  in  I  he  act,  but  tliat 
it  was  intended  by  the  legislature  is  evident  from  the 
very  general  language  of  the  earlier  sections,  which 
have  in  no  manner  been  qualified  or  suboidinaled  to 
the  i)rovisions  contained  in  the  later  sections  of  the 
act. 

As  the  api)lication  for  the  a])pointment  of  a  receiver 
of  the  railwa}^  company  is  included  within  section  1 
of  the  act  of  1883,  and  l)y  it  was  required  to  be  made 
in  the  county  of  New  York,  or  in  an  adjoining  county, 
and  the  order  in  question  "was  not  so  made.,  it  is, 
within  the  very  language  of  the  act,  a  void  order,  and 


CIVIL    PROCEDURE     REPORTS.  103 

United  States  Trust  Co.  v.  N.  i'.,  &c'.  liw.  Co. 

cannot  stand  in  the  v/ay,  tlie/efoie,  of  the  success  of 
the  present  application,  even  though  it  may  not  be  in 
terms  proper  to  foimally  direct  that  it  should  be 
vacated.  It  was  made  without  the  authority  of  law, 
not  designedly,  of  course,  but  the  geneial  language  of 
this  section  of  the  act  of  1883  was  inadvertently  over- 
looked. It  is  r6n)arkable  tliat  such  an  oversight 
sliould  have  arisen  in  the  pioceeding,  as  it  is  obvious 
that  the  order  which  was  directed  and  entered  con- 
forms in  one  of  its  directions  to  what  has  \yeen  required 
by  section  3  of  this  act  of  1883.  It  is  probable  that 
this  oveisight  arose  out  of  the  fact  that  the  proceeding 
was  not  a  contested  one,  but  the  application  made  by 
the  plaintiff  was  acquiesced  in  by  the  railway  cora- 
■])any.  But  such  acquiescence  could  not  confer  this 
authority  upon  the  court,  when  by  this  act  it  had  been 
proliibited  from  exercising  it. 

The  decisions  made  in  Wilkinson  v.  North  River 
Construction  Co.*  and  Phoenix:  Foundry  &  Machine 
Co.  against  the  Same  t  and  AVoerishoffer  against 
["]    the  Same,:};  in  no  manner  conflict  with  the  construc- 
tion here  given  to  the  act  of  1883,  for  no  different 
construction  of    the  portions  of  the  act  applicable  to 
this  proceeding  was  in  any  form  intimated  in  either  of 
those  decisions.     It  is  also  probably  needless  to  add 
that   the  case  of  Attrill  v.  Rockaway  Beach  Imp. 
['*]    Co.  (25  Hun,  370),  can  have  no  effect  upon  the  de- 
teimination  of  this  apjjlication,  for  that  decision 
depended  upon  the  etfect  to   be  given  to  section  7G9  of 
the  Code,    unquaJihed  and  unaffected  by    the  act  of 
1883,  or  any  similar  act. 

From  I  hese  consideraiions,  it   follows  that  the  ap- 
plication  now   made  for   the  api)ointment  of   one  or 

*  Oneida  S]\  T.,  G(5  IIoic.  Pi:  433 
t  lleporteil,  'jM>sl,   |>.  lOlJ. 
\  Reported  2y(?s?,  p.  Il3. 


104  CIVIL    PROCEDURE    REPORTS. 

United  States  Trust  Co.  v.  N.  Y.,  &c.  Rw.  Co. 

more  receivers  of  the  railway  company  has  been  regu- 
larly made  in  the  lirst  judicial  district,  and  that  the 
order  in  form  providing  for  tliat  appointment,  made 
in  Orange  connty,  presents  no  legal  obstacle  in  the 
way  of  the  exercise  of  this  authority. 

One  of  the  persons  who  was  designated  iu  the 
order  has  not  been  seriously  objected  to,  and  from  the 
known   character,    standing  and    position   of   Judge 

Russell,  it  is  very  certain  that  no  Avell  founded 
['•]    objection    to   his    capacity    or   qniilitinations   for 

the  office  of  receiver  could  be  made.  He  has 
entered  upon  the  discharge  of  the  duties  of  that  office 
under  this  void  order,  and  so  far  has  acquainted  him- 
self with  the  affairs  and  business  of  the  railway  com- 
pany, and  there  seems,  tiierefore,  to  be  good  reason 
justifying  his  continuance  in  that  position  by  a  lawful 
appointment,  which  m:iy  be  made  under  the  provisions 
of  this  act.  To  discontinue  or  supersede  his  emploj^- 
ment  in  this  manner  would  be  of  no  benefit  or  advan- 
tage to  either  of  the  bondholders  or  the  i)arties  to  the 
action,  but  it  would  cause  disturbance,  interruption 
and  embarrass?nent  in  the  mannsrenient  of  the  affairs, 
and  tlie  transaction  of  the  business  of  the  railway 
company,  and  ought  not  to  be  permitted.  As  the 
result  oC  a  careful  consideration  of  all  that  has 
been  said  by  counsel,  and  stated  in  the  atiidavits 
brought  to  the  attention  of  the  court,  Judge  Russki.l 
should  be  continued  in  this  office  by  the  order  to  be 
made  upon  this  application,  and  upon  the  like 
security  as  was  requiied  in  his  behalf  b}'  Mr.  Jus- 
tice Brovvn,  who  presided  in  the  court  in  Orange 
connty.  As  to  the  other  )>erson  designated  in  the 
ordei-,  now  considered  inopeiative,  a  serious  opposi- 
tion has  been  made.  It  is  necess/ny,  for  the  ]>ujpose 
of  rendering  it  s^iccessful,  tluit  the  allegations  made 
against  him  should  be  found  to  l)e  well  founded  in 
fact,  for  no  person  should  be  appointed  to  such  a  posi- 


CIVIL    PROCEDURE'    REPORTS.  105 

United  States  Trust  Co.  v.  N.  Y.,  »&c.  Rw.  Co. 

tion  whose  administration  may  not  receive  tlie  con- 
fidence of  the  parties  to  be  affected  by  it.  What  has 
been  alleged  ngainst  him  may  be  entirely  without 
loundation,  as  it  is  said  to  be  by  Mr.  Justice  Baknaud 
in  Currier  d.  New  Yoik,  West  Shore  &  Buffalo  Rail- 
way Co.,*  and  while  the  objections  made  for  that 
reason  would  form  no  good  ground  for  his  removal, 
tliey  might  well  be  entitled  still  to  the  effect  of  pre- 
venting his  appointment.  That,  however,  it  is  not 
necessary  now  to  decide,  for  as  to  the  additional  re- 
ceiver, who  is  to  be  the  associate  of  Judge  Russell,  the 
consideration  of  the  case  will  be  deferied  until  the 
bondholders  and  the  parties  can  be  more  fully  heard 
upon  this  subject. 

The  circumstance  of  an  order  having  been  made  by 
the  circuit  court  of  the  United  States  in  the  district 
of  New  Jersey,  of  a  similar  import  and  effect  to  that 
made  in  Orange  county,  has  not  been  deemed  import- 
ant in  this  case,  for  that  order  proceeded  no  further 
than  to  invest  these  persons  with  authority  over  so 
much  of  the  railwa}^  property  as  was  situated  in  the 
state  of  New  Jersey  and  as  it  followed  the  oi'der  which 
has  been  considered  to  have  been  unauthorized,  it 
could  add  nothing  whatever  to  the  validity  of  that 
order. 

The  disposition  already  indicated  should  be  made 
of  this  application  and  it  may  be  proper  to  add,  in 
conclusion,  that  in  the  diversity  of  the  hnvs  enacted 
to  affect  the  appointment  of  receiver  of  corporations 
and  the  frequent  changes  made  by  the  legislature  in 
their  provisions  any  one  of  the  justice's  of  this  court 
would  have  been  equally  as  liable  to  act  under  a  mis- 
apprehension of  the  state  of  the  law,  as  did  Mr.  Justice 
Brown  at  the  time  when  the  proceeding  was  brought 
before  him  ;  and,  as  it  was  not  contested,  would  have 
been  equally  disposed   to  have  acquiesced  in  the  as- 

*  Unreported. 


106  CIVIL    PROCEDURE    REPORTS? 

Phoenix  Foundry,  &c.  Co.  v.  Nortli,  River  Coustructiou  Co, 

sumed  regularity  of  what  the  parties  to  the  action  both 
consented  should  be  done.  Still  that  will  not  sustain 
the  proceeding,  but  an  order  wiust  be  made,  as  alr»^ady 
suggested  for  the  appointment  of  receivers  of  this 
corporation  to  carry  into  elfect  the  provisions  of  the 
mortgage  as  well  as  the  authoiity  which  the  law  has 
vested  in  the  court  over  the  subject. 


PHOENIX  FOUNDRY  &  MACHINE  Co.  v.  THE 
NORTH  RIVER  CONSTRUCTION  COMPANY. 

Supreme  Court,  Onondaga  County,  Special  Term, 
MarcHj,  1884  ;  also,  Fourth  Department,  Gen- 
eral Term,  Apeil,  1884: 

§§  602  et  seq.,  769,  1809,  1810. 

Motion  to  vacate  order,  where  made — Order  stai/ing  proceedings — When 

not  void  —Receiver — Power  of  supreme  court   to.  appoint,  of  inaol- 

tent  foreign  corporation — Power  to  restrain  actions  and  intei- 

ference  with  property   w/ien  receiver   has  heen  appointed — 

Effect  of  insufficient  service  vf  injunction  order. 

A  motion  to  vacate  an  injunction  order  granted  in  an  action  in  the 
supreme  court  first  judicial  district  of  wuich  tlic  court  had  juris- 
diction, upon  notice,  must  be  made  in  the  judicial  district  in  wiiich 
tlie  action  is  triable. *[',  ",  '*j 

An  order  restraining  or  staying  actions  is  not  void  l)ecaiise  too  broad, 
and  a  party  may  not  disregard  such  an  order  simply  because  it  is 
too  broa<l  or  extensive. ["j 

In  an  actidu  by  a  stockliolder  of  a  foreign  corporation  whicli  was  in- 
solvent, and  of  wiiich  a  receiver  had  been  appointed  in  the  state 
under  whose  laws  it  was  organized  for  the  appointment  of  a  re- 
ceiver of  its  property  in  this  state,  the  supreme  court  has  ])ower  to 
ni)point  a  receiver.['',  '"j  Sucli  receiver  ii-presenis  the  corporsition, 
its  stockholders  and    its  creditors,  and   the  court  appointing  him 

♦  To  same  effect  is  Smith  v.  Danzig,  3  N.   Y.  Civ.  Pro.  137. 


GIVIL    PROCEDURE    REPORTS.  107 

Phoenix  Foundry,  «fcc.  Co,  v.  North  River  Construction  Co. 

has  authority,  as  an  incident  to  the  power  of  appointment  to  pre* 
vent  any  interference  witli  tlie  assets  of  the  corporation  by  individ- 
ual creditors  or  others,  in  order  to  preserve  tlie  fund  for  distribu- 
tion, [*,  '"j  wliich  authority  may  be  exercised  by  an  order  in  the 
suit  in  which  the  receiver  is  appointed.^*]  Such  an  order  is  made 
in  the  exercise  of  the  inherent  power  of  the  supreme  court  to  pro^ 
tect  its  receiver  and  the  fands  in  Iiis  h.inds,  and  is  not  a  creature  of 
the  Ccide.  [°]  and  is  not  subject  to  every  [)ri)vision  of  the  statute  or 
of  tlie  rules  of  court  which  apply  to  the  injunction  orders  granted 
upon  the  application  of  a  party  for  the  proteition  of  his  individ- 
ual rights.  [°J  Accordingly  held,  that  the  provisions  of  the  Code  and 
rules,  requiring  an  undertaking  to  be  given  on  obtaining  an  injunc- 
tion order  and  that  the  order  shall  state  the  grounds  in  which  it  is 
granted  do  not  apply  to  such  an  order.  [**] 

The  fact  that  the  mode  of  service  of  an  injunction  order  was  insuffi- 
cient does  not  warrant  the  vacating  of  ihe  order.  [^] 

Wilkinson  v.  Nor:Ii  River  Construction  Co.  (G6  IIoic.  Pr.  423)  ;[•] 
Attorney-general  v.  Guardian  Mutual  Life  Ins.  Co.  (77  iV.  Y. 
272)  ;L*,  '«J  Erie  R.  R.  Co.  v.  Ramsey  (45  Id.  637);['j  Reims  v. 
AstorFire  Ins.  Co.  (59  Id.  148);["J  Attrill  v.  Rockaway  Beach 
Imp.  Co.  (25  lf«/<,  37G)[''^]  followed:  Walsh  ».  Steam  (12  iV.  Z. 
WeeMi/  Big.  424);[»3]  Perry  v.  Seward  (6  Ahh.  Pr.  327),  ['^j  dis- 
tinguished. 

(Decided  at  Special  Term  March,  1884;  at   Oeneral  Term,  May,  1884.) 

.  Motion  by  plaintiff  at  Onondaga  County  special 
term  to  vacate  an  order  made  in  another  action  in 
New  York  county. 

The  defendant  is  a  foreign  corporation  created  by 
and  under  the  laws  of  the  State  of  New  Jersey  but 
having  a  place  for  the  transaction  of  business  and  a 
fiscal  agency  in  the  city  of  New  York,  On  January 
14,  1884,  one  Charles  F.  Woerishoffer,  a  stockholder 
of  the  defendant,  brought  an  action  against  this  de- 
fendant in  this  court,  in  the  county  of  New  York,  for 
the  benefit  of  himself  and  all  other  stockholders,  and 
of  the  creditors  of  the  defendant,  alleging  in  his  cora- 
l>laint  the  insolvency  of  the  defendant,  and  that  a  re- 
ceiver of  its  effects  had  been  duly  appointed  by  a 


108  CIVIL    PROCEDURE    REPORTS. 

Phoenix  Foundry,  &c.  Co.  v.  Nortli  Kiver  Construction  Ce. 

court  of  competenf.  jurisdiction  in  New  Jerse}^  unci 
asking  for  the  appointment  of  a  receiver  of  rhe  prop- 
erty of  tlie  defendant  in  this  state.  By  an  order 
ma<le  at  u  special  term  of  this  court  held  in  New 
York  Counly  (the  first  district),  January  14,  1884,  ap- 
pointing the  New  Jersey  receiver,  Ashbel  Green,  re- 
ceiver of  all  the  property  and  assets  of  the  company 
in  this  state.  Thereafter,  on  January  19,  1884,  this 
action  was  begun  to  recover  on  contiact  for  merchan- 
dise sold  to  and  woili  done  for  the  defendant,  Onon- 
daga county  being  named  in  the  summons  and 
conjpiaint  as  the  place  of  trial.  Subsequently  the 
order  which  the  plaintiff  herein  seeks  to  have  vacated 
.was  granted  upon  notice  in  the  aforesaid  action 
brought  by  Woerisholfer,  by  special  term  of  the  court 
in  iJew  York  county,  restraining  all  persons  "  from 
bringing  or  prosecuting  any  suits  or  proceedings 
against  the  defendant.  The  North  River  Construction 
Company,  or  in  any  manner  interfering  with  the  assets 
of  said  defendant  until  the  further  order  of  the 
court." 

Wlllian  8.  Andrews  {Kiiapp,  Notiinghavi  <£•  An- 
drews, attorneys),  for  the  motion. 

C  B.  Alexander,  opposed. 

Vann',  J. — The  plaintiff  in  this  action  moves  at  a 

special  term  sitting  in  the  fifth  judicial  district  to 

[']     vacate    an    order  made   in   another  action   by  a  ^ 

special  term  sitting  in  the  lirst  district.  f 

This  is  expressly  prohibited  by  section  769  of  the 

Code  of  Civil  Procedure.    The  learned  counsel  for  the 

jilaintiff  has  argued  with  much  force  that  the  order  in 

qnestion   is   void  because  it  was  issued   without  any 

authority.  If  it  is  void  this  motion  is  unnecessary  ; 

[*]     but  after  careful  deliberation  1  have  held  it  to  be 


CIVIL    PROCEDURE    REPORTS.  109 

Phoenix  Foundry,  &c.  Co.  v.  North  River  Construction  Co. 

valid  in  the  case  of  Wilkinson  v.  Tlie  North  River  Con- 
struction Company,*  and  for  my  reasons  must  refer 
to  the  opinion  in  that  case.  As  this  motion  cannot  be 
made  outside  of  the  judicial  district  in  which  the 
order  complained  of  was  made,  none  of  the  other 
questions  argued  by  counsel  have  been  considered. 
Ten  dollars  costs. 

From  the  order  entered  on  this  decision  the  plaint- 
iff appealed  to  the  general  term. 

William  S.  Andrews  (Knapp,  NottingTiam  &  An- 
drews, attorneys),  for  appellant. 

C.  B.  Alexander,  for  respondent. 

Smith,  P.  J. — The  object  of  the  action  brought  by 
the  stockholder  Woerishoffer,  and  of  that  to  which  it 
is  ancillary,  is  to  wind  up  the  affairs  of  the  insolvent 
corporation,  and  make  an  equitable  distribution  of  its 
assets   among  all  its  creditors.     The  receiver  ap- 
[*]     pointed  in  those  actions  represents   the  corpora- 
tion, its  stockholdei's,   and  its  creditors,  and  the 
court  by  wiiich  he  was  appointed  had  authoiity,  as  an 
incident  to  the  power  of  appointment,  to  prevent  any 
inierfereiice  with  the  assets  of  the  corporation  by  indi- 
vidual   creditors  or   others,  in  order  to    preserve    the 
fund  for  distribution  {In  re  Attorney-General-^. 
[*]     The  Guardian  Mutual  Life  Insurance   ComjDany, 
.    77  N.  Y.  272). 
Such  Jiuthority  may   be   exercised   by   an   order 
['J     made  in  the  suit  in  which  the  receiver  is  appointed 
{Id.).     An  order  of  that  nature,  being  for  the  \)Vo- 
tection  of  the  fund  v.hich  the  court  has  in  its  posses- 
sion through  its  receiver,  is  not  subject  to  every  pro- 
vision of  the  statute,  and  of  the  rules  of  court  which 

♦  66  How.  Pr.  423. 


110  CIVIL    PROCEDURE    REPORTS. 

Phcenix  Foundrj',  &c.  Co.  v.  North  River  Construction  Cu. 

applj^  to  the  injunction  orders  granted  upon  the  appli- 
cation of  a  party  for  the  protection  ot  his  individual 
rights.  It  is  properly  made  in  the  aciion  in  which  the 
receiver  is  appointed,  and  a  creditor  who  attempts  to 
interfere  with  the  fund  by  unnecessarily  subjecting  it 
to  the  costs  of  an  action  to  enfoi-ce  his  claim,  cannot 
set  np  that  the  older  is  innffectual  as  to  him  because 
not  made  in  his  own  action.  If  there  are  controversies 
to  be  litigated,  or  accounts  to  be  adjusted  between  such 
creditors  and  the  corporation,  all  can  be  done  on  the 
investigation  of  the  claim  in  the  winding-up  suit,  and 
the  creditor  is  a  party  to  that  suit  through  his  repi-e- 
sentative,  the  receiver. 

In  short,  the  order  is  made  in  the  exercise  of  the 
[•]     inherent  power  of  this  court  to  protect  its  receiver 

and  the  funds  in  his  hand,  and  is  not  a  creature 
of  the  Code  (2  Story's  Bq.  Jur.  %  891).  This  power  is 
recognized  by  section  1806  of  the  Code  in  the  classes  of 
actions  therein  referred  to,"  in  wiiich,  however,  the 
present  action  is  not  included,  but  that  section  is 
simply  declaratory  of  the  common  law  as  far  as  it 
goes,  and  does  not  divest  the  court  of  its  power  in 
cases  not  within  its  provisions. 

That  this  court  has  the  power,  by  an  order  made 
[']     in  one  action,  to  restrain  jn'oceedings   in  another 

pending  before  it,  was  held  in  Erie  R.  K.  Co. 
n.  Ramsey  (45  N.  Y.  637),  overruling  the  case  of 
Schell  V.  Erie  Rw.  Co.  (51  Barb.  868),  cited  by  the  ap- 
pellant's cotmsel.  True,  the  power  is  lo  be  exeici^ed 
in  extreme  cases  only,  but  here  is  a  case  in  which  its 
exercise  is  necessary  lor  tlie  equal  ju'oteclion  of  all  ihe 
creditors  of  ihe  insolvent  cojpoiation,  including  the 
creditor  whose  aciion  is  stayed  by  it. 

If  these  views  are  correct,  it  I'esulls  that  none  of 
[•]     the  objections  urged  by    the  appellant's  counsel 

are  tenable.  As  we  have  seen  already,  the  order 
is  valid,  although  not  made  in  the  action  brought  by 


■  CIVIL    PROCl!:DURE    REPORTS.  Ill 

Piiceiiix  Foundry,  &c.  Co.  v.  North  River  Construction  Co. 

the  present  pUiintiff.  And.  the  provisions  requiring 
an  undertaking  to  be  given  on  obtaining  an  injunc- 
tion order,  and  that  the  order  shall  state  the  grounds 
on  which  it  is  granted,  do  not  apply  to  an  order  like 
the  one  in  hand. 

If  the  raode  of  service  was  insufficient,  it  does 

[']     not  warrant  the  vacating  of  the  order  ;  whether  it 

would  authorize  proceedings  against  the  plaintiff 

for  a  contempt  in  case  of  disobedience  of  the  order  is  a 

question  not  involved  in  this  appeal. 

The  order  should  be  affirmed,  with  ten  dollars  costs 
and  disbursements. 

Hardin",  J, — [Concurring.]-^In  the  Woerishoffer 
action  against  the  North  RiverConstruction  Company, 
the  court  acquired  jurisdiction  of  th^  defendant, 
['"]  and  had  power  to  appoint  a  receiver.  The  re- 
ceiver so  appointed  represents  all  the  creditors, 
and  as  Andrews,  J.,  says  in  Attorney-General  v. 
Guardian  Mutual  Life  Ins.  Co.,  77  iV.F.  272,  "they 
are  subject  to  the  summary  jurisdiction  of  the  court 
in  matters  pertaining  to  the  administration  of  the 
estate  of  the  insolvent  corporation.  The  court  at 
special  term  in  New  York  had  power  to  make  the 
order  staying  proceedings  against  the  insolvent  cor- 
poration." If  that  staj  ordei'  was  improperly  granted, 
or  if  reasons  exist  whj^  it  should  be  vacated  or  modi- 
fied quoad  the  plaintiff  in  this  action,  the  reasons 
should  be  presented  to  the  court  in  the  district  wherein 
the  stay  order  was  made."  If  the  plaintiff  is  entitled 
to  such  remedy,  it  "must  be  sought  by  applica- 
["]  tion  to  the  court  in  the  district  in  which  the  re- 
ceiver was  appointed,  and  in  the  action  in  which 
the  appointment  was  made."  Andkkw^s,  J.,  in  Reims 
V.  Astor  Fire  Ins.  Co.  (69  N.  Y.  148),  used  the  lan- 
guage just  quoted.  Besides,  it  is  2:)rovided  by  section 
7G9  of  the  Code  of  Civil  Procedure,  viz.:  "A  motion 


112  CIVIL    PROCEDURE    REPORTS. 

Plioenix  Foundry,  &c.  Co.  ».  North  Uiver  Construction  Co. 

upon  notice  in  an  action  in  the  supreme  court  must  be 
made  within  the  judicial  district  in  which  the  action 
is  triable." 

The   same   position   we  have   already   stated    was 

asserted  by  the  court  in  the  first  depai  tment  in 
["]   1881  in  deciding  Attrill  v.  Rockaway  Beach  Imp. 

Co. ,  reported  i  n  25  Ilun,  378. 

If  the  order  was  irregular,  because  obtained  with- 
out complying  with  section  GIO  of  the  Code  or  Rule 
13  without  reciting  the  grounds  upon  which  it  was 
granted,   the  remedy   was  by   motion  in  the  district 

,whereili  it  was  made.  Section  769  of  the  Code  was 
["]   not  referred  to  in  Walsh  v.  Stearn  (12  JV.  Y.  Week. 

Dig.  424),  and  the  court  incidentally  remaiked  that 
"  the  legal  effect  of  the  order  was  to  remove  an  illegal 
restraint  and  it  had  no  other  effect."  We  do  not 
regard  that  authority  as  applicable  here,  but  if  a  full 
examination  of  that  case  should  present  the  point  in- 
volved and  a  holding  adverse  to  the  views  we  have 
stated,  we  should  be  constrained  to  disregard  it,  and 

follow  cases  we  have  hereinbefore  cited.  Periy  v. 
['*]   Seward  (6  Abb.  Fr.  327),  is  not  applicable  ;  it  was 

decided  in  1858,  long  before  the  enactment  of  sec- 
tion 769,  and  the  motion  was  made  in  all  the  actions, 
and  was  a  motion  to  consolidate  all  the  actions;  and" 
it  was  made  in  the  county  "in  which  all  the  parties 
resided"  and  actions  "were  all  triable  in  Albany 
county"  where  the  motion  was  made.     If  the  order 

restraining  or  staying  actions  is  too  broad,  it  is  not 
['*J    therefor  void  and  a  party  may  not  disregard   the 

order  simply  because  it  is  too  broad  or  extensive 
(People  V.  Pendleton,  64  N.  Y.  622;  People  v.  Sturte- 
vant,  9  Id.  263). 

We  think  the  plaintiff  must  seek  his  remedy, 
[••]   if  he  wishes  to  assert  it,  in  the  lifetime  of  the  order 

complained  of,  in  the  action  pending  in  the  first 
district  (Wilkinson  v.   This  Defendant.  66  How.  Pr. 


CIVIL    PROCEDURE     REPORTS.  113 


Woerishoffer  ■».  Nortii  River  ConsuiKtion  Co. 

423  ;  Artorney  General  v.  North  Am.  Life  Ins.  Co.,  6 
Abb.  A',  a  293;  S.  C,  56  llow.  Ft.  ICO;  Attorney 
General  o.  Guardian  Mut'l  Life  Ins.  Co.,  77  N.  Y.  272).* 
This  order  should  be  affirmed,  with  $10  costs  and 
disbursements. 

Bakker,  J.,  concurred. 


WOERISHOFFER  ».  THE  NORTH   RIVER  CON- 
STRUCTION COMPANY. 

Supreme  Court,  New  York  County,  Special  Term, 
June,  1884. 

§§  1809,  1810. 

lieceiter. — Power  of  supreme  court  to  entertain  action  for  appointment  qf^ 

of  foreign  corporation. — Notice  to  uttorney  general.' — Injunction^ 

restraining  actions,  etc. —  When  vacated  as  to 

attaching  creditors. 

Under  section  1810  of  the  Code  of  Civil  Procedure,  the  supreme  court 
has  power  to  enlertaiii  an  aciioii  brought  by  a  stockholder  of  a  cor- 
poration or<ianized  unde.-  tlie  laws  of  New  Jersey  for  the  appoint- 
ment of  a  receiver  of  its  property  in  this  state  on  tlie  ground  that  it 
was  insolvent  and  tliat  a  receiver  of  its  effects  had  been  appointed 
by  a  court  of  competent  jurisdiction  in  New  Jersey,  and  to  appoint 
u  receiver  of  tlie  property  of  the  defendant  therein.' 

The  provisions  of  chapter  ;578  of  tiie  Laws  of  1883,  requiring  notice 
to  the  attorney  general  of  a  motion  for  a  receiver  of  a  corporation, 
do  not  apply  to  the  appointment  of  an  auxiliary  receiver  of  a  for- 
eign corpt  ration. [*,  'J 

Where  after  certain  creditors  of  a  foreign  corporation  bad  levied 
attachments  of  its  propertj',  an  ancillary  receiver  of  it  was  ap- 
pointed in  this  state, — Held,   that  the  appointment  of  a  receiver 

*  See  People  ex  rel.  Negus  v.  Dwyer,  3  N.  T.  Civ.  Pro.  379  (387). 
Vol.  YI.— 8 


114  CIVIL    PROCEDURE    REPORTS. 

Woerislioffer  v.  North  River  Construction  Co. 

could  not  divest  them  of  tho  rijjhts  they  had  acquired  and  that 
they  should  be  allowed  to  proceed  nud  perfect  tiieir  judgment  :ind 
realize  wiiat  they  C(mld  out  of  the  property  ;  that  an  order  re- 
straining all  persons  from  bringing  or  prosecuting  any  suit  or  pro- 
ceeding against  tiie  defendant  or  interfering  with  its  assets  should 
be  vacate<l  as  to  such  creditors. [•*] 

Phojnix  Foundary  &  Machine  Co.  v.  North  River  Construction  Co. 
(6  iV.  T.  Cic.  Pro.  106),  approved. [»J 

(Decided  June  23,  1884.) 

Motion  by  certain  attachment  creditors  of  the  de- 
fendant to  dissolve  an  injunction  granted  herein. 

The  defendant  is  a  foreign  corporation  organized 
by  and  under  the  laws  of  the  state  of  New  Jersey. 
The  plaintiff  is  one  of  its  stockholders  and  as  such 
brought  this  action  in  behalf  of  himself  and  all  other 
stockholders  and  creditois  of  I  he  defendant,  for  the 
appointment  of  a  receiver  of  the  property  of  the  de- 
fendant in  this  state,  on  the  ground  that  it  was  insol- 
rent,  and  that  a  receiver  of  its  property  and  effects  had 
been  appointed  by  a  court  of  competent  jurisdiction 
in  New  Jersey. 

July  14, 1884,  on  notice,  an  order  was  made  at  a  spe- 
cial term  of  this  court  in  New  York  county  appointing 
Aslibel  Green  ancillary  receiver  of  the  property  of  the 
corporation.  Thereafter  an  order  was  granted  enjoin- 
ing and  restraining  all  persons  "from  bringing  or  pros- 
ecuting any  suits  or  j^roceedings  against  the  defend- 
ant ....  or  in  any  manner  interfering  with  the  assets 
of  the  defendant  until  the  further  ord«^r  of  the  court." 
That  order  is  ihe  one  which  certain  creditors  who  had 
attached  the  property  of  the  defendant  before  the  ap- 
pointment of  the  ancillary  raceiver,  now  seek  to  have 
vacated. 

George  E.  ComstocJc,  F.  N.  Bangs,  F.  L.  Stetston^ 
John  L.  Hill  and  M.  A.  Knapp,  for  the  motion. 


CIYIL    PROCEDURE     REPORTS.  115 

Woerishoffer  v.  North  River  Construction  Co. 

.  JohnE.  Parsons,  and  C  B.  Alexander,  for  plaint- 
iff, opposed. 

William  M.  Eoarts,  for  the  receiver,  opposed. 
Howard  Mansfield,  for  the  defendant,  opposed. 

Van  Brunt,  J.— Under  section  1810  of  the 
f]  Code,  the  court  evidently  had  the  power  to  en- 
terrain  this  action  and  to  appoint  a  receiver  of  the 
property  of  the  defendant  therein. 

By  reason  of  the  injnnction  granted  by  the  conrt 
in  New  Jersej^,  the  domioil  of  the  corporation,  the 
officers  and  the  agent  of  the  corporation  of  which  that 
court  had  Jurisdiction  were  enjoined  from  interfering 
with  the  property  of  the  corporation,  and  this  injunc- 
tion operated  upon  such  officers  personally,  no  matter 
where  the  property  of  the  company  was  situated.  The 
appointment  of  a  receiver  in  the  state  of  New  Jersey 
operated  only  upon  property  within  that  state,  and 
therefore  as  to  the  assets  of  the  corporation  within 
this  state,  there  was  no  officer  empowered  to  hold  the 
same. 

As  to  the  objection  that  under  chapter  378  of  the 
Laws  of  1883  the  appointment  of  the  receiver  in  this 
action  was  void  because  of  the  want  of  notice  to  the 
attorney  general,  it  does  not  seem  to  be  well  taken. 
The  reason  for  the  enactment  of  the  law  must  neces- 
sarily be  considered  in  determining  the  scope  of  the 
act. 

By  this  provision  requiring  notice  to  the  attorney 
general  it  was  intended  to  prevent  the  improvident 
appointment  of  receivers  by  the  court  upon  the  motion 
of  parties  who  were  thereby  endeavoring  to  further 
their  own  private  schemes  rather  than  attempting  to 
preserve  the  assess  of  a  corporation  for  its  credi- 
n    tors.     This  restraint  upon  the  appointment  of  a 


116  CIVIL    r-ROCEDURE    REPORTS. 

Woerishoffer  t.  Kortli  Rivtr  Construction  Co. 

leceiver  could  not  in  the  slightest  degree  apply  to 
the  appotntment  of  an  auxiliary  receiver  of  a  foreign 
corporation.  lu  such  a  case  the  necessity  for,  and  the 
right  tea  receiver  have  been  adjudicated  upon  by 
the  courts  of  the  state  where  the  corporation  is  domi- 
ciled. 

Whatever  evil  would  result  from  the  appointment 
of  a  receiver  has  already  been  inflicted,  and  the  inter- 
vention of  the  courts  of  this  state  is  nierely  to  pre- 
serve the  property  of  the  corporation  within  this  state 
for  equal  distribution  among  the  creditoi-s  of  the  cor- 
poration ;  such  receiver  being,  in  my  judgment,  bound 
to  account  in  this  state  for  all  property  within  this 
state  at  the  time  of  his  appointment. 

The  appointment  of  such  auxiliary  receiver  being 
to  preserve  the  assets  of  the  corporation  for  distribu- 
tion among  its  creditors  eqnally,  and  not  for  the  pur- 
pose of  allowing  such  assets  to  be  removed  by  the  re- 
ceiver to  a  foreign  jurisdiction  and  compelling  the 
creditors  within  this  state  to  go  to  a  foreign  jurisdic- 
tion to  prove  their  claims  ^against  assets  which  they 
might  have  reached  by  action  in  this  state  but  for  the 
appointment  of  the  receiver.  The  injustice  which 
would  flow  from  a  different  construction  of  the  right 

of  domestic  creditors  is  too  manifest  to  need  argu- 
[•]     ment.     I  am  of  the  opinion,  therefore,   that  the 

act  of  1883  does  not  apply  to  auxiliary  receivers, 
as  such  receivers  are  neither  within  the  letter  nor 
spirit  of  the  act. 

The  further-. objection  is  raised  to  the  continuance 
of  the  injunction,  that  the  court  had  no  jiower  to  grant 

the  same.  .  This;  question  seems  to  have  l)eeu 
[*]     decided  by  t<he  general  teim,  fourth  dej)artmenf, 

in  the  case  of  Phoenix  Foundry  and  Machine  Co. 
t.  North   River  Construction   Co.,*  and  I  concur  in 

*  Ante,  p.  106. 


CIVIL    PROCEDURE    REPORTS.  117 

Phelps  V.  Phelps. 

the  views  expressed  by  presiding  Justice  Smith  in  his 
opinion. 

As  to  creditors  who  have  attachments  which  have 
been  levied  upon  assets  of  the  corporation  prior  to  the 
appointment  of  the  ancillary  receiver,  they  should  be 
allowed  to  proceed  and  perfect  their  judgment  and 
realize  what  they  can  out  of  the  property  levied  upon, 
as  the  appointment  of  a  receiver  could  not  divest  them 
of  riglits  they  acquired.  The  motion  to  dissolve  the 
injunction  as  to  the  attaching  creditors  must  be 
granted. 


PHELPS  ?).  PHELPS. 


SuPEEME  Court,  Herkimer  County,  Special  Term, 
November,  1883, 

§§  424,  439,  528,  844. 

Affidavit.  —  Certijicate  to.  tal-en  icithout  the  state. — Effect  of  failure  of 
on  order  for  piihlieation. — Appearance. — -What  amounts  to. 

Wlicre  the  affidavit  and  complaint  on  which  au  order  for  publication 
was  granted  were  suorn  to  without  this  state  and  were  not  certified 
in  tlie  manner  lequired  to  entitle  a  deed  so  acknowledged  to  be 
recorded  in  this  state, — Held,  tiiat  the  papers  were  to  be  regarded 
as  unverified, *an<l  that,  so  rejjarded.  tiiey  failed  to  give  the  court  or 
officer  any  jurisdiction  of  the  ease,  and  the  order  for  publication  and 
the  proceedings  thereunder  were  without  authority  and  vo'd;  that 
no  subsequent  ladies  of  ti»e  defendant  could  give  jurisdiction. 

When  on  a  motion  by  a  defendant  to  set  aside  tlie  service  of  a  sum- 
mons by  publication  and  all  proceedings  thereunder,  his  attorneys 

*  See  Williams  v.  Waddell,  5  N.  T.  Civ.  Pro.  191  ;  Harris  v.  Dur- 
kee,  5  Id.  370;  Code  Cicil  Procedure,  528.  It  seems,  that  proof  of  tiie 
laws  of  tile  state  in  whicii  the  atlidavit  was  taken,  empowering  the 
officer  taking  it  to  do  so,  and  if  his  signature  may  be  substituted  for 
the  certiiiciite.      Vide  Williauis  c.  Waddell,  supra. 


118  CIVIL    PROCEDURE    REPORTS: 

Fhelps  V.  Phelps. 

indorse  their  names  on  the  motion  paj>ers  as  attorneys  for  the  de- 
fendant,— Ileld,  tliat  this  was  an. appearance  in  the  action  sufficient 
to  <;ive  the  court  jurisdiction  of  the  case  and  of  the  person  of  the 
defendant. 
{Decided  JSocemler  12,  1883.) 

Motion  by  defendant  to  vacate  and  set  aside  an 
order  for  the  publication  of  the  summons  herein  and 
all  j)roceedings  thereunder. 

This  is  an  action  fov  absolute  divorce.  Tiie  sum- 
mons was  served  by  publication  in  1878  and  judgment 
taken  on  tiie  defendant's  failure  to  appear  or  answer 
in  Janujiry,  1879. 

The  order  for  publication  was  granted  on  a  com- 
plaint veritied  without  the  state  before  a  clerk  of  the 
supreme  court  of  Maine  accompanied  by  a  certificate 
purporting  to  be  signed  by  one  Appleby,  who  de- 
iscribed  himself  as  chief  justice  of  the  state  of  Maine, 
certifying  that  the  person  who  took  the  affidavit  was 
the  proper  person  to  make  out  and  certify  copies  of 
allrec'ords  and  proceedings  of  the  supreme  judicial 
court,  holden  Avithin  and  for  the  county  of  Knox,  in 
the  state  of  Maine,  and  that  full  faith  and  credit 
should  be  given  to  his  acts  and  attestations. 

In  November,  1883,  the  defendant  made  this 
motion. 

Louis  Marshal^  for  the  motion. 

Til c  verification  was  a  nullity,  and  the  comphnnt 
must  be  treated  ;i  sun  verified.  Ltidd  v.  Terre  Ilnute, 
&c.,  R.  R.  Co.,  13  K.  Y.  Weekly  Dig.  2()0  ;  Lutli^r  v. 
Prison,  4  IS.  Y.  Monthly  Law  Bvl.  91.  .  .  .  The  oh. 
jeciions  .  .  .  are  diiected  to  the  jurisdi('fion  of  I  he 
court  and  are  not  merely  irregulaiities,  and  cnnnot 
Ix'  nmeuded  or  overcome  by  any  claim  of  Inches. 
Kendall  c.  AVashburn,  14  JIoio.  Pr.  380;  Titus  v. 
Relyea,  10  Id.  371. 


CIVIL    PROCEDURE    REPORTS.  119 

Phelps  V.  Phelps. 

William  H.  Ring,  opposed. 

The   complaint    was    ])ropprly    verified.     Code  of 
Civil  Procedure,  §§  525,  526,  844. 

Chukchill,  J. — Tlie  order  of  publication  of  the 
summons  in  this  action  was  made  by  the  county  judge 
of  Montgomery  county,  November  12,  1878,  and  was 
made  upon  a  complaint  and  affidavit  i)urporting  to 
have  been  verified  by  the  plaintiff  in  tlie  state  of 
Maine,  on  August  8,  1878.  Prior  to  that  time  the  law- 
relating  to  the  taking  of  affidavits  in  other  states  to  be 
used  in  this  state  as  it  existed  before  the  Code  of  Civil 
Procedure  (2  R.  S.  396,  g  25,  and  Laws  of  1869,  chap. 
133),  had  been  repealed  (chap.  417,  Laws  of  1877,  §  1, 
sub.  3  [6],  and  subdiv.  4  [43]),  leaving  in  force  after 
September  1,  1877,  section  844  of  the  Code  of  Civil 
Procedure,  to  govern  the  taking  of  such  affidavits.  By 
that  section  an  affidavit  taken  in  another  state  to  be 
used  in  this  state,  must  be  taken  before  an  officer 
autliorized  by  the  laws  of  the  foreign  state  to  take 
and  ceitify  the  acknowledgint-nt and  proof  of  deeds  to 
be  recorded  in  that  slate,  and  that  he  was  such  officer 
and  so  authorized  (Laws  of  1869,  chap.  5.57),  must  be 
certified  in  the  manner  required  to  entitle  a  deed 
acl^nowledged  before  him  to  be  recorded  in  this  state. 
In  the  affidavits  presented  to  the  county  judge  there  is 
an  entire  failure  (so  far  as  the  papers  show),  to  comply 
with  tliese  requirements  of  the  Code,  and  the  papers 
are  to  be  regarded  as  unverified  by  the  plaintiff;  so 
regarded  they  fail  to  give  the  courts  or  officer  any 
jurisdiction  of  the  case,  and  tlie  order  of  pul)lication 
and  the  i)r<jceedings  subsequent  tliereto  to  judgment 
are  without  authority  and  void.  6W<^,  §  439.  Jf  the 
afiidavit  in  question  failed  to  give  jurisdiction  no  sub- 
sequent laches  of  the  defendant  could  give  such  juris- 
diction.    Titus  v,\  Relyea,  16  How.  Pr.  371. 

The   defendant's    attorneys    have    indorsed    their 


120  CIVIL    PROCEDURE    REPORTS. 

Phelps  V.  Pl)elps. 

names  upon  the  motion  papers  served  by  them  in  this 
case  as  attorneys  for  the  defendant,  which  is  an  ap- 
pearance in  the  action,  and  is  snfTioient  to  give  the 
conrt  jurisdiction  of  the  case  and  of  the  person  of  the 
defendant.  Code  C'lml  Pro.  §  424 ;  Mahoney  «.  Pen- 
man, 4  Duer,  608  (605).* 

An  order  should  be  entered  vacating  and  setting 
aside  the  judgment  of  divorce  heretofore  entered  in 
this  action,  and  giving  to  the  defendant  20  days  after 
the  entry  of  the  order  to  be  entered  herein  in  which 
to  make  and  serve  a  demand  of  a  copy  of  the  com- 
plaint of  -the  plaintiff  in  this  action,  the  proceedings 
subsequent  thereto  to  be  the  same  as  though  personal 
service  of  the  summons  had  been  made  upon  the 
defendant. 

Let  an  order  in  accordance  with  the  foregoing  be 
drawn,  and  filed  and  entered  in  Montgomery  county, 
and  let  the  papers  used  on  the  motion  also  be  filed  in 
that  county.f 

♦  Sec  on  this  subject  Doiighiss  p.  Haberstro,  8  Ahh.  N.  C.  230;  S. 
C,  58  Eow.  Pr.  270;  C'oucli  u.  Mullime,  6-3  Hoic.  Pr.  79  ;  Krause  «. 
Averill,  4  N.  T.  Civ.  Pro.  410  ;   Code  <f  Citil  Procedure,  §  421. 

tTins  case  was,  on  appeal,  affirmed  by  general  teira  of  the  third 
department,  see  32  Hun,  G42. 


CIVIL    PROCEDURE    REPORTS  121 


De  Silver  v.  Holden. 


De  silver,  Respondent,  v.  HOLDEN,  Appellant. 

N.  Y.  SuPEiMOB  Court,  General  Term,  March, 

1884. 

§§  484,  1316. 

Appeal  from  final  judgment  on  overruling  demnrrer. — Joinder  causes  of 
■  action. — False  representations  and  conversion. — Pleading. — 
Da  mages.  — In  tent. 

Upon  an  appeal  from  a  judgment  entered  upon  an  assessment  of 
plaintiff's  damages,  after  a  demurrer  to  the  complaint  liad  been 
overruled  and  final  judgment  ordered  for  plaintiff,  tlie  correctness  of 
the  order  overruling  the  demurrer  is  involved. ['] 

A  cause  of  action  that  by  false  and  fraudulent  representations,  de- 
fendant had  induced  plaintiff  to  sign  a  bond  for  the  payment  of 
money  secured  by  mortgage  on  plaintiff's  real  estate,  whicli  at  de- 
fendant's request  were  made  to  a  third  person,  to  whom  defendant 
delivered  them,  receiving  a  specified  sum  therefor,  may  be  joined 
under  subd.  6,  §  487,  of  the  Code,  virith  a  cause  of  action  for  the 
conversion  of  plaintiff's  property  by  defendant.  Both  causes  of 
action  are  for  injury  to  personal  property. [*] 

After  execution  and  before  delivery  of  the  l)ond,  plaimiff  had  a  prop- 
erty therein,  and  the  con)j)laint  alleges  that  defendant  by  false 
pretenses  obtained  the  bond,  which  was  as  much  an  injury  to  prop- 
erty as  a  tortious  taking  and  a  conversion  thereof.[^] 

A  special  allegation  of  damage  in  such  case  is  not  necessary  ;  the 
presumption  that  plaintiff  will  be  obliged  to  pay  the  bond  is 
enough.  [*] 

An  averment  that  with  intent  to  deceive  and  defraud  plaintiff,  de- 
fendant falsely  and  fraudulently  stated  and  represented  certain 
matters  of  fact  as  to  his  own  financial  condition,  and  as  to  property 
owned  by  him,  etc.,  implies  that  defendant  knew  the  representa- 
tions to  be  false  when  he  made  theni.[^] 

{Decided  April  7,  1884.) 

Appeal  from  a  final  judgment  in  favor  of  plaintiff, 
entered  upon  an  order  and  interlocutory  judgment 
overruling  defendant's  demurrer  to  the  complaint, 
which  was  on  two  grounds:  1.  That  causes  of  action 


122  CIVIL    PROCEDURE    REPORTS. 

De  Silver-®.  Holdem 

are  improperly  united.    2.  That  the  allegations  as  to 
the  first  alleged  cause  of  action  are  insufficient,  &c. 
The  facts  appear  in  the  opinion. 

B.  P.  W'ilder,  for  appellant. 

I.  The  causes  of  action  are  improperly  united 
{Code^  §  488,  subd.  7).  The  first  is  for  damages  for 
obtaining  a  bond  and  mortgage  upon  real  property  by 
false  and  fraudulent  representations.  The  second  is 
for  failing  to  return  a  chattel  after  demand.  The 
first  relates  to  a  supi)osed  injur_y  to  real  property 
as  an  impairment  of  plaintiff's  title  ;  the  second  re- 
lates to  personal  property,  but  in  no  manner  alleges 
"injury"  to  it.  But  assuming  tliat  the  conversion 
of  a  chattel  is  in  law  an  "injur\'"  to  personal 
prox^erty,  fraudulent  representations  whereby  a  phiint- 
iff  was  induced  to  execute  a  bond  and  mortgage  not 
yet  due  nor  payable,  and  by  reason  whereof  plaintiff 
has  not  yet  suffered  loss,  are  not  an  injury  to  personal 
"  property  "  (§  3343,  subd  10).  Conversion,  wrongful 
detention,  and  an  action  for  accounting  cannot  be 
united  (Thompson  v.  St.  Kichojjis  Bank,  61  How.  163). 
Nor  can  a  cause  of  action  for  malicious  prosecuti(m 
be  united  with  one  for  false  imprisonment  (Nebenzahl 
V.  Townsend,  61  How.  353).  Nor  a  cause  of  action  for 
an  assault  with  one  for  slander,  although  the  slander 
and  assault  were  simultaneous  (See  also  Furniss  v. 
Brown,  S  How.  191  ;  Colvellzj.  N.  Y.  &  E.  R.  R.  Co., 
9  How.  212;  Ehle  v.  HuUer,  10  Ahb.  Pr.  287  ;  Max- 
well V.  Farman,  7  How.  236;  Flynn  v.  Biiiley,  ViO  Barb. 
73  ;  McDonald  v.  Kountze,  58  How.  152  ;  Hunter  v. 
Powell,  15  Id.  221  ;  Cobb  ??.  Dows,  9  Barb.  230  ; 
Anderson  v.  Hill,  53  Id.  238). 

II.  The  first  cause  of  action  does  not  set  forth  facts 
sufficient  to  constitute  a  cause  of  action.  It  does  not 
appear  that  plaintiff  will  ever  be  called  upon  to  pay 
lier  bond  or  redeem  her  mortgage.     They  are  not  yet 


CIVIL    PROCEDURE    REPORTS.  123 

De  Silver  v.  Holden. 

due.  JVon  constat^  but  the  defendant  will  do  his 
whole  duty  in  that  belialf.  In  a  civil  action  for  fraud 
and  deceit,  damage  is  as  essential  to  the  action  as 
fraud  (Aberdeen  v.  Blackman,  6  Hill,  324  ;  Gilbert 
«.  Wiman,  1  Co?)ist.  550  ;  Wright  Z).  Whiting,  40  Barb. 
235).  The  complaint  does  not  allege  that  defendant 
knew  his  representations  to  be  false  when  he  made 
them.  JVon  constat ,  but  he  honestly  believed  them  to 
be  true  (Moore  xi.  Noble,  63  Barh.  425;  Robinson  v. 
Flint,  66  Id.  100  ;  Van  Vliet  v.  McLean,  23  Hun,  206). 

C.  Bainhrldge  Smit/i,  for  respondent. 

I.  The  causes  of  action  are  properly  joined,  and 
fall  within  the  provisions  of  the  Code  termed  "For 
injuries  to  personal  property  "  {Code  Clo.  Pro.  §484, 
subd.  6  ;  Cleveland  v.  Barrows,  69  Barb.  364 ;  Lovett 
V.  Pell,  22  Wend.  369). 

II.  The  maker  of  a  negotiable  promissory  note  can 
maintain  an  action  for  its  conversion  (Decker  v.  Mat- 
thews, 12  N.  Y.  313  ;  Develin  c.  Coleman,  50  Id.  531), 
and  the  plaintiff  is  entitled  to  recover  the  amount  of  the 
note  as  damages  for  its  conversion  without  averring  or 
proving  that  he  has  paid  it  to  the  holder  {Id.) 

III.  The  plaintiff  Avill  have  to  x>ay  the  bond  and 
mortgage.  The  mortgagee  paid  the  money  on  it  in 
good  faith  (Aikin  'o.  Morris,  2  Barb.  Qh.  140). 

Sedgwick,  Ch.  J. — The  judgment  appealed  from 
was  entered  upon  an  assessment  of  plaintiff's  damages 

after  a  demurrer  to  the  complaint  had  been  over- 
[']     ruled  and  final   judgment   ordered  for   plaintiff. 

The  appeal  involves  the  correctness  of  the  order 
overruling  the  demurrer.  The  demurrer  was  pkiced 
•upon  two  grounds  ;  lirst,  that  causes  of  action  were 
improperly  joined  ;  and  second,  that  the  allegations 
of  the  first  alleged  cause  of  action  are  not  sufficient  to 
constitute  a  cause  of  action. 


124  CIVIL    PROCEDURE    REPORTS. 

De  Silver  t.  Uoldcn. 

The  iirst  alleged  cause  of  action  was,  that  by  false 
and  fraiidulent  representations,  the  defendant  had  in- 
dnce<l  the  plaintiff  to  sign  a  bond  conditioned  for  the 
p.iyiiM'ht  of  $1,700,  and  also  a  mortgage  ujion  pJaint- 
ilfs  real  estate,  to  secure  the  payment  of  the  bonds 
whicli  were  made  to  a  third  person  by  defendant's 
request,  to  whom  defendant  delivered  them,  receiving 
therefor  from  the  third  person  $1,700.  The  other  al- 
leged cause  of  action  was  for  the  conversion  ot  person- 
al property  belonging  to  [tlaintiff. 

The  appellant's  counsel  argues  that  the  joinder  is 
not  justified  by  the  Code,  unless  by  subdivision  6  of 
the  484th  section,  that  provides  that  the  plaintitf  may 
unite  canses  of  action  for  injuries  to  personal  pro[)erty. 
The  further  claim  is,  that  the  first  cause  of  action  is 
not  for  an  injury  to  persontd  proi>ert3\ 

Cleveland  v.  Barrows  (59  Barb.  374),  satisfactorily 
decides  this  point.  The  opinion  is,  "  Fraud  is  a  wrong, 
and  if  a  party  thereby  obtains  from  another,  propertj^ 
it  is  an  injury  to  the  i)ro[)erty  of  such  other  in  the  same 
sense  precisely  as  though  the  wrongdoer  had  taken 

the  property  tortiously  and  converted  it.  The 
[*]     bond  signed  by  the   plaintiff  was  her  property, 

and  the  complaint  alleges  that  the  defendant  ob- 
tained it  from  her  by  false  pretences.  This  only 
affected  pei-sonal  property,  for  the  mortgage  which 
affected  the  real  [>ro[)erty  was  distinct  and  different 
from  the  bond.     That  she  had  a  x^roperty  in  the  bond 

after  she  signed,  and  befoi-e  it  was  delivered  to  the 
[■"]     obligee  by   the  defendant,  is  shown  by  Decker  v.  { 

Matthews  (12  JV.  Y.  313),  and  the  cases  which  have  / 
followed   it.      There  was  therefore   no   misjoinder  of 
canses  of  action. 

The  important  objection  to  the  sufficiency  of  the 
allegation  to  form  a  statement  of  a  cause  of  action  is, 
that  the  complaint  does  not  aver  directly  that  the  de- 
fendant knew  that  the  representations  he  made  were 


CIVIL    PROCEDURE    REPORTS.  155 

De  Silver  v.  Holden. 

false.  But  if  the  allegations  imply  that  he  knew  they 
were  false,  it  seems  to  be  enough,  under  the  case 
n  of  Marie  v.  Garrison  (83  N.  Y.  28).  It  was  said 
in  that  case,  "Bearing  in  mind  that  what  is  im- 
plied in  an  averment,  is  on  demurrer  to  be  taken  as  if 
the  thing  implied  is  directly  averred,  and  that  an  argu- 
mentative pleading  is  not  for  that  reason  demurrable, 
we  conclude,  although  not  without  some  hesitation, 
that  anaverment  of  refusal  to  exchange  does  import 
that  the  other  party  offered  to  do  that  without  which 
no  exchange  could  be  effected,  viz.,  that  he  tendered 
the  property  or  thing  which  was  the  consideration  of 
that  which  he  was  to  receive,  and  which  he  called  on 
the  other  party  to  deliver." 

The  complaint  avers  that  with  intent  to  deceive  and 
defraud  this  plaintiff,  the  defendant  falsely  and  fraud- 
ulently stated  and  represented  certain  matters  of  fact 
as  to  his  own  financial  condition  and  as  to  property 
owned  by  him.  These  were  things  that  the  law  would 
presume  were  within  his  knowledge.  Such  averments 
imply  a  charge  that  the  defendant  knew  the  represen- 
tations to  have  been  false,  or  that  he  knowingly  made 
them. 

There  is  another  objection,  that  the  complaint  does 
not  show,  that  the  plaintiff  was  or  will  be  damaged  by 
the  fact  of  the  bond  being  delivered  to  the  third  per- 
son after  having  been  obtained  by  the  defendant.  On 
the  facts  stated  there  is  a  liability  u[)on  the  bond 
["]  by  the  plaintiff  to  the  third  person,  and  a  pre- 
sumption that  she  will  be  obliged  to  pay,  and  no 
pi-esumpliou  that  the  defendant  will  indemnify  her, 
after  he  has  been  guilty  of  the  tort  charged.  Again, 
there  are  some  damages,  and  the  assessment  of  them 
is  not  under  review. 

Judgment  affirmed  with  costs. 

O' Gorman,  J.,  concurred. 


i2fi  CIVIL   phockdur::   re?outs. 


Walsli  V.  Si;lmlz. 


■\VALSH,  Appellant,  v.  SCHULZ,  Impleaded,  etc., 
Respondent. 

N.  Y.  Common  Pleas,  General  Term,  November, 

18S3. 

§  3191. 

Discretionary  orders  of  city  court  of  New  Yorh,  appeals  from. — Relation 
of  court  of  common  pleas  and  city  court. 

The  court  of  common  pleas  will  not  review  a  discretionary  order  of 
the  city  court,  and  there  13  nothing  in  section  3191  Code  Civ.  Pro., 
or  the  amendments  thereof,  Avhich  makes  it  incumbent  upon  the 
court  to  entertain  such  appeals. 

Tlie  court  of  common  pleas  holds  the  same  position  with  respect  to 
the  city  court,  that  the  court  of  appeals  holds  with  respect  to  the 
supreme  court  and  the  superior  city  courts. 

(Jjccided  May  22',  1884.) 

Appeal  from  an  order  of  the  city  court,  general 
term,  affirming  an  order  made  by  Mr.  Justice  McAdam 
opening  a  judgment  entered  by  default. 

E.  II.  Benn^  for  appellant. 

CJiarles  Welile,  for  respondent. 

Van  Hoesen,  J. — The  language  of  section  3191 
diirers  in  sonn^  particulars  from  that  of  section  100,  but 
the  differences  do  not  affect  the  matters  un<ler  con- 
sideration. It  is  well  settled  that  with  res[)Hct  to  the 
marine  court,  that  the  court  of  common  ]>leas  occupies 
the  same  position  tliat  the  court  of  appeals  holds  with 
respect  to  the  supreme  court  and  the  superior  city 
courts.  The  rules  that  govern  the  court  of  appeals  in 
passing  upon  appeals  from  the  supreme  and  the  su- 


CIVIL    PROCEDURE    REPORTS.  137 


Wulsh  V.  Schulz. 


pHi-ior  ciry  courts  nre  ap[)licable  to  the  court  of  com- 
mon pieas.  This  has  been  nniversally  understood  since 
the  decision  in  McEleere  v.  Little  (8  Dal?/,  167)  and 
Schwartz  v.  Oppohl  (74  JV.  Y.  307).  If,  therefore,  we 
ascertain  the  ctmrse  that  wonkl  be  taken  by  the  court 
of  appeals,  if  tliis  appenl  vviis  before  it,  we  shall  have 
a  guide  to  the  decision  of  the  question  before  us. 

The  case  of  Lawrence  ?).  Farley  (73  N.  Y.  187),  is 
coivclusive  upon  the  point  that  the  court  of  a[)peals 
will  not  review  the  disci'etion  of  a  couit  of  original 
jurisdiction.  In  the  case  ciled,  a  judgment  by  default 
was  entered  against  the  defendant  in  1862.  In  1874  a 
judgment  for  a  deficiency  was  docketed  against  the 
defendant,  and  more  than  two  years  afterward  the  de- 
fendant applied  for  the  opening  of  the  judgment,  and 
gave  excuses  for  suffeiiiig  the  default  that  were  satis- 
factory foi-  the  supieme  court,  which  o[)ened  the  judg- 
ment and  allowed  the  defendant  to  interpose  an  answer. 
From  this  order  an  appeal  was  taken  to  the  court  of 
appeals,  which  dismissed  the  appeal  on  the  ground 
that  the  order  was  discretionary,  and  that  the  court  of 
appeals  being  a  tribunal  created  for  the  examination 
of  questions  of  law  (save  in  a  few^  cases  specially  pro- 
vided for),  ought  to  refrain  from  matters  of  discretion 
which  are  likely  to  involve  intricate  controversies 
respecting  matters  of  fact.  To  the  same  effect  are 
Howell  V.  Mills  (53  iV.  Y.  331)  ;  and  Ailing  v.  Fahy 
(70  Id.  671). 

As  I  have  already  said,  the  court  of  common  pleas 
is,  with  respect  to  the  marine  court,  in  the  position  of 
an  appellate  tribunal,  charged  (save  a  few  cases  pro- 
vided for)  with  the  sole  duty  of  reviewing  questions  of 
law  ;  and  the  same  reason  that  j)i'<''^ents  the  court  of 
appeals  from  viewing  matters  resting  in  the  discretion 
of  other  courts,  applies  with  full  force  to  appeals 
brought  into  this  court  from  discretionary  orders  made 
by  the  marine  court. 


128  CIVIL     PROCEDURK    RKPORTS. 

Estate  of  IJogert. 

There  is  nothing  in  the  amendment  to  section  3191 
that  introduces  a  new  rule,  for  nothing  in  it  requires 
us  to  review  matters  of  discretion  that  the  marine 
court  has  considered. 

Again,  the  order  before  us  was  made  after  judg- 
ment, and  section  3191  does  not  authorize  an  appeal 
to  the  court  from  such  an  order.  Lawrence  ?>.  Farley, 
73  N.  Y.  189  ;  Bamberg  v.  Stern,  76  Id.  55.').  This 
last  observation  is  obiter^  as  is  the  further  one,  tliat  the 
case  of  Townsend.  v.  Hendr:<2ks  (40  How.  Pr.  143) 
would,  in  my  opinion,  warrant  us  in  sustaining  the 
appealability  of  the  order,  if  it  were  not  a  discretionary 
order.  I  do  not  discuss  the  matter,  though  I  have 
examined  it,  and  formed  a  decided  conclusion  upon  it. 

The  appeal  should  be  dismissed,  with  costs. 

Van  Brunt,  J.,  concurred. 


Estate  of  WILLIAM  S.  BOGERT,  Deceased. 

Supreme  Court,   Second  Department,  General 
.  Term,  May,  1884. 

§§2011,  2G18,  2623. 

Will. —  When  admitted  to  probate  against  testimony  of  subscribing  witness. 

Where  one  of  the  wit,nc<5«es  to  a  will  testified  to  its  due  publication 
and  the  other  witness  testified  that  he  sit^ned  the  will,  and  wro;c 
his  residence  after  his  name  at  the  request  of  the  testator,  and  it 
appeared  that  the  will  and  tiic  attcstuiion  clause  whicii  was  in  tiie 
following  words:  "  Sij^ned,  sealed  and  published  by  the  said  testa- 
ment (sic)  to  be  his  testament  in  the  presence  of,"  were  in  the  hsind- 
writing  of  tiie  testator  and  tliat  he  was  a  man  of  more  than  ordi- 
nary intelligence  and  methodical  in  his  liabits, — Held,  tluit  the  case 
was  eminently  proper  for  the  application  of  the  provision  of  the 


CIVIL    PKOCEDURE    REPORTS.  129 


Estate  of  Boorert. 


Code  that  when  a  witness  has  forgotten  the  occurrence,  or  testifies 
agiiinst  the  execution  erf  the  will,  tlie  will  may  nevertheless  be 
establislicd  upon  ])roof  of  tlie  liandwritin^j  of  the  testator  and  of 
the  subscribing  witnesses  and  also  of  such  other  circumstances  as 
would  be  sufficient  to  prove  the  will  upon  the  trial  of  an  action, 
and  that  the  proof  was  sufficient  to  establish  the  will  on  the  trial 
of  an  action. 

Estate  of  Bogert  (4  iV.  F.  Civ.  Pro.  441),  affirmed  ;  2ft  re  Cottrell  (5 
Id.  340),  followed. 

(^Decided  September,  1884.) 

Appeal  from  decree  of  surrogate  of  Kings  county 
admitting  to  x^i'<>'>'i-te  the  last  will  and  testament  of 
William  S.  Bogerl,  deceased. 

Reported  below,  4  N.  Y.  Civ.  Pro.  441. 

The  will  in  question  was  dated  April  12,  1883,  and. 
was  executed  some  time  subsequent  to  its  date  and 
about  a  month  before  the  death  of  the  testator,  which 
occurred  x\ugust  12,  1883. 

The  will  and  the  attestation  clause  were  written 
upon  a  single  page  of  paper,  and  this  was  presented 
smooth  and  unfolded  by  INlr.  Bogei't  to  each  witness 
when  he  signed  his  ntinie. 

William  II.  Gray  and  Jacob  D.  Fowler  were  the 
subscribing  witnesses  to  the  will ;  both  were  examined 
on  th'^  proceedings  foi-  probate,  and  they  were  the  only 
witnesses  produced  and  examined  before  the  surrogate. 
Mr.  Gray  was  a  wholly  disinterested  witness.  Mr. 
Fowler  was  a  ne[thew  of  the  deceased,  and  one  of  his 
next  of  kin  and  heii's  at  law,  entitled  to  share  in  the 
estate  if  the  will  was  bioken. 

The  suuogate  admitted  the  will  to  probate  and  the 
contestants  took  this  appeal. 

Further  facts  are  stated  in  the  opinion. 

Scoollle  &  .Djwitl,  for  appellants. 

Bufus  F.  Uriggs  and  M.  J.  McKenna,  for  respond- 
ent. 

Vol.  VI.— 9 


130  CIVIL    PROCEDURE    REPORTS. 

Estate  of  Bo^ert. 

The  testimony  of  an  interested  witness  may  be 
rejected,  even  though  it  has  not  been  directly  contra- 
dicted. El  wood  V.  The  Western  U.  Tel.  Co.,  45  JY.  Y. 
653;  Koehler  v.  Adler,  78  Id.  287;  Kavanagh  r.  Wil- 
son, 70  Id.  Ill ;  McNulry  v.  Hurd,  86  Id.  547  ;  Lesser 
n.  Wuuder,  9   Daly^  70;    Newhouse   v.    Godwin,   17 

Barb.  236 Fowler  was  the  witness  of  the  court 

rather  than  of  the  proponent;  we  were  compelled  by 
law  to  call  him  ;  his  credibility  was  therefore  open  to 
attack  on  our  part.  "The  reason  fails  (/.  e.,  of  not 
being  allowed  to  discredit  j'our  own  witness),  wiien,  in 
fact,  the  party  is  as  in  this  case  comi)elled  by  law  to 
call  him,  no  matter  how  much  he  doubts  the  credibil- 
ity of  the  witness."  Thornton  v.  Thornton,  39  Vt.  122  ; 
Alexander  n.  Beadle,  7  Caldwell  {Tenn.  R.)  ;  1 
Greenleaf  on  Evidence^  %  443  ;  2  Taylor  on  Enidence., 
178;  Dennetts.  Dow,  17  Me.  19 The  court  be- 
low lias  found,  as  a  matter  of  fact,  that  the  testimony 
of  Fowler  as  to  the  non-publication  of  the  will  in  his 
presence,  was  nnworth}^  of  credit.  As  the  primary 
tribunal  in  these  ]iroceedings,  it  is  to  have  serious 
allowance  made  to  it  on  a  question  of  fact  found  by  it. 
For  it  has  the  opportunit}'  to  personally  scrutinize  the 
witnesses  and  their  nianner  of  testifying.  Gardiner  ». 
Gardiner,  34  N.  Y.  157.  And  the  court  cannot  reverse 
the  decree  of  the  surrogate,  unless  it  appears  to  have 
been  erroneously  made.  The  presumption  is  in  favor 
of  its  correctness.  Roliwagen  v.  Rollwagen,  3  IJun, 
121.  Under  the  decisions,  the  testimony  of  Fowler 
shows  a  sufficient  acknowledgment  by  the  testator  of 
his  signature  in  Fowler's  presence.  The  will,  which 
btyely  tills  a  single  page  of  foolscap,  laj-^  on  the  table 
open,  and  right  before  F'owler,  when  he  was  asked  by 
the  testator  to  sign  it  as  a  witness.  Fowler  admits 
that  he  saw  the  testator's  name  subscribed  to  it  at  the 
time.    Baskin  v.   Baskin,  36  N.  Y.  416 ;   Conboy  v. 


CIVIL    PROCEDURE    REPORT.  131 

Estate  of  Boj^ert. 

Jenkins,  1  JV.  Y.  Supm.  CL  {T.  &  C.)  622;   Taylor  v. 
33rodliead,  5  Bed/.  627 

"The  fact  that  the  testator  was  fully  apprised  of 
the  testamentary  character  of  the  instrument,  may  be 
considered  in  aid  of  proof  tending  to  establish  a  publi- 
cation" (Gilberts.  Knox,  52  N.  T,  125;  Trustees  of 
Auburn  Sem.  v.  Calhoun,  25  Id.  425;  Seguine  v.  Se- 
guine,  2  Barb.  385).  "  Probateof  a  will  is  to  be  granted 
or  denied  in  view  of  all  the  facts  attending  its  execu- 
tion "  (Taylor  v.  Brodliead,  5  Redf.m\\  Tarrant  ??. 
Ware,  25  N,  Y,  428  ;  Lawrence  ».  Norton,  45  Barb.  448). 
..."  The  certificate  df  attestation  to  a  will  b}'  a  de- 
ceased witness,  in  connection  with  the  other  circum- 
stances of  the  case,  may  warrant  a  jury  in  finding  the 
due  execution  of  the  will  against  the  evidence  of  the 
other  subscribing  witness,  more  especially  when  the 
witness  denying  the  due  execution  thereof,  had  never 
before  been  called  upon  to  witness  a  will,  and  knew 
nothing  of  the  formalities  required ;  .  .  .  .  and  should 
the  testimon}^  of  the  latter  amount  to  a  positive  denial, 
the  relative  weight  of  the  conflicting  proof  would  then 
depend  upon  the  apparent  integrity  and  intelligence 
of  the  witness  and  the  circumstances  surrounding  the 
particular  case"  (Orser  v.  Orser,  24  N.   Y.  51). 

The  will  in  the  above  case  was  admitted  to  probate 
on  presumptions  arising  from  the  circumstances  at- 
tending its  execution,  notwithstanding  the  positive 
denial  of  its  due  execution  by  the  only  surviving  sub- 
scribing witness.  The  fact  that  the  attestation  clause 
was  regular,  and  that  the  deceased  witness  was  an  ex- 
pert draughtsman  of  wills,  was  held  to  outweigh  the 
adverse  testimony  of  a  witness  who  was  shown  t_o  be 
ignorant  of  the  required  formalities.  "Under  these 
circumstances  there  can,  I  apprehend,  be  no  doubt 
that  a  jury  would  be  at  liberty  to  find  that  the  will  was 
duly  executed  "  {Id.  53;  Webb  v.  Dye,  18  West  Va.  * 
376";  Rugg  v.  Rugg,  83  JV.  Y.  592). 


133  CIVIL    PROCKDUKE    REPORTS. 

Estate  of  Bogert. 

Dykman,  J. — This  is  an  appeal  from  the  decree  of 
the  siiiTo^ate  of  Kings  connry  admitting  to  probate 
the  last  will  and  testament  of  William  S.  Bogeit  de- 
ceased. 

The  controversy  has  reference  to  the  celebration  of 
the  formalities  required  by  statute  in  the  execution  of 
a  valid  and  lawful  will.  The  subscribing  witnesses 
were  William  H^  Gray  and  Jacob  J).  Prowler,  and  they 
were  the  only  witnesses  examined  before  the  surro- 
gate. There  is  an  attestation  clause  below  the  will  and 
both  it  and  the  will  are  in  the  handwriting  of  the  tes- 
tator. The  attestation  clause  is  as  follows  :  ''  Signed, 
sealed  and  published  by  the  said  testame/ii*  to  be  his 
testament  in  presence  of."  Then  follows  the  nnmes 
and  places  of  residence  of  the  witness.  The  testimony 
of  AVilliam  H.  Gray  shows  a  perfect  execution  of  the 
will  and  a  full  compliance  with  all  the  statutory  re- 
quirements. He  says  the  testator  told  him  he  wanted 
him  to  witness  a  paper  which  he  had  before  him  on  a 
table.  It  had  then  been  signed  by  the  testator,  who 
then  pointed  to  it  and  said  "  That  is  my  will  and  th;tt 
is  my  signature."  Then  the  witness  read  the  attesta- 
tion clause  and  put  his  name  under  it  and  the  testator 
requested  him  to  put  down  his  address. 

The  other  witness,  Fowler,  testified  that  when  he 
signed  the  paper  he  noticed  the  signature  of  Mr.  Bo- 
gert and  Mr.  Gray,  that  Mr.  Bogeit  requested  him  to 
sign  it  and  he  did  so  and  then  he  nsked  him  to  sign 
his  residence,  but  that  he  did  not  know  whiit  the  in- 
strument was. 

We  have  therefore  a  testator  who  wrote  his  own 
will  and  who  understood  the  formalities  requisite  to 
its  due  execution,  for  he  comi)lied  with  them  all  with 
the  witness  Gray.  The  handwriting  of  the  testator 
and  of  the  witness  are  all  genuine  and  fully  authenti- 

*  So  in  the  will. 


CIVIL    PROCEDURE    REPORTS.  133 

Estate  of  Bogert. 

cated  and  no  circumstance  of  suspicion  appears  against 
the  will.  The  witness  Fowler  is  a  nephew  of  the  de- 
ceased and  his  testimony  is  quite  u nivalis factoiy. 
The  case  therefore  seems  an  eminently  pro[)er  one 
for  the  application  of  that  wise  provision  ol  the  Code 
of  Civil  Procedure,  that  if  a  subscribing  witness  has 
forgotten  the  occurrence  or  testifies  against  the  exe- 
cution of  the  will,  the  will  may  nevertheless  be  estab- 
lished upon  proof  of  the  handwriting  of  tlie  testator 
and  of  the  sabscribing  witnesses,  and  also  of  such 
other  circumstances  as  would  be  sufficient  to  x^i"«ve  the 
will  upon  tliH  trial  of  an  action  {Code  §  2620). 

The  same  principle  had  been  enunciated  by  the 
couits  of  this  state  before  the  [)as3nge  of  this  law,  and 
it  was  applied  in  the  very  extreme  and  extraordinary 
case  of  Cottr^ll  by  the  court  of  ap[)eals  not  yet  rei)ort- 
ed.*  In  that  case  both  of  the  subscribing  witnesses 
to  the  will  testified  that  none  of  the  formalities  required 
by  law  were  complied  with  in  its  execution  in  their 
presence,  and  positively  denied  that  either  of  them 
were  present  at  its  execution  or  signed  the  attestation 
clause.  Yet  notwithstanding  this  testimony  the  sur- 
rogate found  the  will  duly  executed  and  admitted  it 
to  probate  and  the  court  of  appeals  affirmed  the  decree. 
That  case  isauthority  sutficient  to  uphold  this  decree, 
for  there  the  bui'den  cast  on  the  proponents  of  the  will 
was  much  greater  than  here.  By  the  section  of  the 
Code  to  which  reference  has  been  made,  the  proof  of 
the  handwriting  of  the  testator  and  the  subscribing 
witnesses  seems  to  be  given  gi-eat  prominence  and  im- 
portance. In  addition  to  that  proof  we  have  here  the 
imi)ortant  fii,ct  that  the  will  itself  is  in  the  handwiit- 
ing  of  the  decedent  and  that  he  held  it  several  months 
after  its  date  before  he  jirocured  its  attestation.  So 
that  all  opportunity  for  imposition  and  misapprehen- 

*  Boported,  5  N.  T.  Civ.  Pro.  340. 


134  CIVIL    PROCEDURE    REPORTS. 

Estate  of  Bogcrt. 

sion  is  effectually  removed.  The  will  is  the  ojffspring 
of  the  tesralor's  brain  and  the  proof  is  that  he  was  a 
man  of  more  than  ordinary  intelligence  and  methodi- 
cal in  his  habits.  Faultless  compliance  with  the  stat- 
utory requirements  is  established  by  one  witness,  and 
it  is  very  signilicant  that  the  failing  witness  Fowler 
says  that  when  he  was  called  in  by  the  testator  he  laid 
the  paper  down  as  he  had  done  with  the  former  wit- 
ness Gray,  requested  him  to  sign  it  and  when  he  had 
signed  it  he  requested  him  to  add  1) is  residence  pre- 
cisely as  he  had  made  the  same  request  to  Gray.  It 
requires  considerable  credulity  to  believe  that  he  did 
TU)t  at  the  same  time  publish  his  will  and  avow  his 
signature.  He  knew  itsimi>(>rtance  and  necessity,  and 
relied  upon  Fowler  for  the  last  witness  to  his  will, 
which  was  to  dispose  of  his  property.  To  give  credi- 
bility to  the  testimony  of  this  witness  would  be  equiv- 
alent to  a  finding  that  in  that  solemn  moment  he  pur- 
posely did  a  vain  thing  when  all  his  conduct  shows 
that  he  intended  to  execute  his  last  will  and  testament 
in  view  of  his  a[>proaching dissolution,  and  this  too  in 
face  of  the  fact  that  he  had  drawn  with  his  own  hantl 
an  attestation  clause  for  the  witnesses  to  sign,  lecit- 
ing  all  the  necessary  formalities,  and  that  Fowler  by 
signing  that  had  certified  that  the  requisite  formiili- 
sies  had  been  observed.  All  the  presnmptions  arising 
from  the  presence  of  the  attestation  clanse  and  the 
exectUion  of  the  will  uiuler  the  supervision  of  a  pei- 
»on  famiJinr  with  the  statutory  foiinalities,  are  lo  he 
indulged  in,  in  this  case  and  on  the  whole exuuiinniiou 
we  are  Ind  safely  to  the  concb.ision  that  the  proof  is 
siitticient  to  establish  this  will  on  the  trial  of  an  ac- 
tion. 

The  decree  should  be  affirmed  with  costs  payable 
l)}i  the  appellants. 

Baknard,  p.  J.,  and  Pkatt,  J.,  concurred. 


CIVIL     PROCEDURE     REPORTS.  135 


Muscr  ».  Lewis. 


MUSER,    ET    AL.,     Respondents,    v.    LEWIS,    Im- 
pleaded, Appellant. 

N.  Y.  Superior  Court,  General  Term;  May,  1884, 

§  450. 
Torts  hy  icife—  Uusbavd's  liability. 

It  is  only  as  regards  torts  committed  bj'  the  ^Yifo  in  the  managenieut 
or  control  of  her  separate  property,  that  the  common  law  rule  as  to 
the  husbaiid''s  liability  ischaii^red  by  tlie  statutes  of  tiiis  state. 

Wiiere  the  wife  receives  stolen  goods  while  carrying  on  a  separate 
business,  and  becomes  thereby  liable  in  conversion,  as  tlie  wife 
never  acquired  a  p'operty  in  the  goods,  the  case  does  not  fall 
within  the  above  exception. 

A  partial  satisfaction  of  damages  by  one  of  several  joint  tort-feasors, 
is  admissible  in  mitigation  of  damages  as  to  another  of  said  tort* 
feasors. 

Fitzgerald  v.  Quann,  1  N.  T.  Civ.  Pro.  273,  disapproved. 

{Decided  June  26,  1884.) 

Appeal  by  defendant  Joseph  Lewis  from  judgment 
for  plaintiffs. 

A  motion  was  made  in  behalf  of  said  defendant  to 
dismiss  the  com[ilaint  as  to  liim  on  the  grounds,  that 
there  was  no  evidence  in  the  case  connecting  him  per- 
sonall\%  with  any  of  the  tortious  acts;  that  the  de- 
fendant Mis.  Lewis,  the  wife  of  appellant,  had  used 
lier  separate  means  and  estate  in  the  transactions,  and 
the  same  were  the  results  ol"  her  separate  business,  and 
that  her  husband  the  appellant  had  nointeres-t  therein, 
nor  connection  therewith. 

The  motion  was  denied  and  an  except.^on  taken. 

Further  fticts  appear  in  the  opinion 

Dackl  LevenlrlU,  for  appellant. 
I.  The  liability  of  the  husband,  for  the  wife's  torts, 
grows  merely  out  of  the  fact,  that  by  the  rules  of  the 


J  36  CIVIL    PROCEDURE    REPORTS. 

Muser  v.  Lewis. 

common  law,  a  suit  cannot  be  maintained  against  a 
wife  alone  daring  coverture,  and  if  the  two  could  not; 
be  sued  togetlier,  tlie  party  suffering  the  injui y  would 
be  without  remedy."  2  Bishop  Married  Women, 
§254;  to  similar  effect  see  Cooley  Torts,  ifn  ;  Cupel 
c.  Powell,  17  e.  B.  N.  S.  743;  Larkin  «.  Marshall,  4 
Uxch.  R.  805  ;  Newton  ??.  Boodle,  9  Q.  B.  948;  Row- 
ing V.  Manly,  49  N.  Y.  192.  The  reason  of  the  rule 
ceasing  to  exist  by  the  provisions  of  the  Code  of  Civil 
Procedure  (§  450)  the  rule  itself  i?  abrogated. 

II.  The  husband  is  not  liable  for  the  torts  of 
his  wife.  Fitzgerald  v.  Quann,  1  K.  Y.  Civ.  Pro. 
273;  Trebing  •o,  Yetter,  reported  in  note,  12  Abb. 
N.  a  302  ;  Muser  c.  Miller,  3  N.  Y.  Oio.  Fro.  388 ; 
Jie  Outwin's  Trusts,  48  Laio  Times  B.  N.  S.  410  ; 
James  v.  Barrand,  31  Weekly  Rep.  786;  Abouloff 
t).  Oppenheimer  {Q.  B.  Die.)  30  Id.  429 ;  Re  Fish- 
er's Trusts,  30  Id.  56;  Goods  of  Ayies,  31  Id.  6G0 ; 
Baum  ?;.  Mullen,  47  N.  Y.  578;  see  also  Rowe  z. 
Smith,  45  Id.  230 ;  Fiske  v.  Bailey,  51  Id.  150 ; 
Vanneman  v.  Powers,  56  Id.  39;  Pejik  v.  Lemon,  1 
Za7i5.  295;  Gillies  'v.  Lent,  2  Abb.  Pr.  {N.  8.)  455; 
Lansing  v.  Holdridge,  58  How.  449,  Now,  in  the  case 
under  consideration,  it  appears  that  the  transactions 
were  had  by  the  wife,  Mrs.  Lewis,  without  the  knowl- 
edge or  participation  of  her  husband,  the  appellant; 
slie  had  a  separate  estate — to  wit :  the  moneys  invested 
and  subsequently  the  property  acquired  through  su'Mi 
investment,  and  the  tort  was  committed  in  the  piose- 
cution  of  her  separate  business,  and  for  her  exclusive 
gain,  and  thus  this  action  clearly  affected  hersejjaiate 
property. 

III.  Partial  satisfaction  by  one  inures  to  the  bene- 
fit of  other  joint  tort-feasors  in  mitigation  of  damages 
(Knappv.  Roche.  18  Week.Dirf.  324  ;  Bush  v.  Prosser, 
]1  N.  Y.  347;  Wilmartli  ??.  Babcock,  2  /////,  194). 
Satisfaction  by  one  joint  tort-feasor  has  always  been 


CIVIL    PROCEDURE    REPORTS.  137 

Muser  v.  Lewis. 

held  to  be  available  as  a  bar.  to  an  action  against  an- 
other (Livingston  v.  Bishop,  1  Johns.  ^91  ;  Thomas  r>. 
Rumsey,  6  Id.  81  ;  Bionson  v,.  Fitzlingh,  1  Hill.,  185; 
Knickeib<;cker  ?>.  Hawes,  8  Cow.  Ill  ;  Brown  i).  Kiu- 
chelse,  3  Cold.  192 ;  Mercliants'  Bank  v.  Curtis,  37 
Barb.  317 ;  Ruble  -g.  Turner,  2  //.  &  N.  38  ;  Robertson 
■B.  Smith,  18 /o7^/^ 5.  481;  Pearce  ■».  Peaice,  25  Barl). 
243  ;  Pouting  V.  Watson,  32  Eng.  L.  (&  E.  116  ;  Barrett 
?).  Third  Avenue  R.  R.  Co.,  45  ' N.  Y.  628  ;  Woods  v. 
Pangburn,  75  Id.  495). 

D.  M.  Porter.,  for  respondents. 

I.  If  the  wife  is  the  sole  offender  in  the  criminal 
act,  the  husband  must  be  sued  Jointl}^  for  the  damages 
arising  therefrom  (Horton  v.  Payne,  27  How.  374; 
Tait  v.  Culbertson,  57  Barb.  9  ;  Wagener?).  Bill,  19  Id. 
321).  The  authority^  to  a  married  woman  to  carry  on 
a  separate  business,  leaves  the  other  common  law  in- 
abilities in  existence  (Coleman  v.  Burr,  93  N.  Y.  17). 
The  common  law  liability  of  the  husband  for  the  wife's 
crimes  continues  in  full  force  (Bertles  v.  Kunan,92  N. 
Y.  152). 

See  also  Dimelon  ??.  Rosen feld  {N.  Y.  Daily  Megis- 
ter,  June  29,  1878,  page  1241),  Chief  Justice  Sedg- 
wick :  "Although  I  believe  the  learned  counsel  has 
stated  correctly  the  reasons  of  the  husband  being 
joined  as  a  party  in  an  action  against  his  wife  for  her 
separate  tort,  nevertheless  in  case  of  judgment  against 
them,  he  has  to  make  satisfaction  by  his  body  or  prop- 
erty. This  was  true,  whether  or  not  the  wife  has 
brought  to  the  husband  any  propert^^,  so  that  prac- 
tically the  plaintiff  has  the  right  to  resort  to  the  hus- 
band's property  or  body  for  his  wife's  tort.  I  am  not; 
convinced  that  this  right  has  been  destroyed  by  the 
effect  of  recent  legislation  as  to  married  women.  If 
this  be  right,  it  ma,y  i)roperly  be  enforced  against  the 
husband  by  joining  him  as  a  party  with  his  wife.    Sec- 


138  CIVIL    PROCEDURE    REPORTS. 

Muser  v.  Lewis. 

tion  450  does  not  forbid  the  joining  of  any  party  as 
defendant  with  a  married  woman  in  a  proper  case." 
See  also  Berrien  v.  Steel  (1  Cio.  Pro.  II.  279) ;  Fitz- 
simons  v.  Harrington  {Id.  360) ;  Hoffman  v.  Lachman 
{Id.  278). 

Mrs.  Lewis  was  perpetrating  a  felony  and  not 
carrying  on  any  separate  business.  She  was  receiving 
the  goods,  knowing  them  to  be  stolen,  consequently 
her  husband  is  liable  lor  this  tort,  because  she  never 
acquired  title  to  the  property  in  question.  No  one  can 
acquire  title  to  goods  through  the  commission  of  a 
theft  or  by  receiving  stolen  goods  (Hoffman  y.Carow, 
21  Wend.  21 ;  22  Id.  285.;  Conlan  v.  Latting,  '6  E.  D. 
S.  Bo3  ;  Brower  v.  Peabody,  13  i\^.  Y.  121). 

II.  No  demand  for  the  goods  was  necessary.  Be- 
cause they  were  received  from  the  thief,  knowing  that 
they  were  stolen  (Pease  v.  Smith,  51  JV.  Y.  477; 
Glassner  v.  Wheaton,  2  B.  D.  S.  3o2).  The  goods  haci 
been  delivered  to  Mrs.  Miller.  Afteractual  conversion 
no  demand  is  necessary  (Glassner  v.  Wheaton,  2  E. 
D.  8.  352  [354]  ;  Vincent  v.  Conklin,  1  Id.  203  [212]  ; 
Sharp  V.  Whipple,  1  Boaw.  557). 

Skdgwick,  Ch.  J. — The  action  was  substantially 
for  the  conversion  of  plaintiff's  personal  pro})erty. 
Among  the  defendants  in  said  action  was  Fanny 
Lewis,  the  appellant's  wife.  The  proof  showed  that 
she  was  guilty  of  the  actual  conversion  and  her  lius- 
band,  the  appellant,  did  not  ])articipate  in  it.  The 
claim  against  him  was  grounded  on  thn  proposition 
that  he  was  liable  in  damages  for  his  wilVs  fort. 

The  testimony  showed  that  a  clerk  of  the  plaint- 
iffs stole  from  them,  through  a  long  time,  a  great 
quantity  of  laces,  and  from  time  to  time  sold  them  in 
l)arcels  to  the  appellant's  wife.  The  veidict  was  not 
taken  as  to  whether  she  knew  that  they  had  been 
stolen. 


CIVIL    PROCEDURE    REPORTS.  139 

Jluser  V.  Lewis. 

In  Baum  v.  Muller  (47  JV.  Y.  679),  the  court  de- 
clared that  the  statutes  in  reference  to  married  women, 
had  not  altered  the  common-law  liability  of  the  hus- 
band for  the  personal  tort  of  his  wife,  but  that  such 
rule  was  changed  by  the  statutes  of  18G0,  chapter  90, 
and  1862,  chapter  172,  when  such  torts  are  committed 
in  the  management  and  control  of  her  separate  prop- 
erty. In  Rowe  c.  Smith  (45  iV;  Y.  233),  Judge  An- 
drews said,  referring  to  these  statutes,  that  "they 
leave  unaflPected,  this  liability  for  the  strictly  personal 
torts  of  the  wife." 

Both  of  these  cases  were  directed  to  the  necessity 
of  joining  the  husband  as  defendant  with  the  wife,  in 
a  charge  of  tort  done  by  her.  In  the  first  case  the  tort 
was  obtaining  money  by  false  representations  of  the 
agent  of  the  wife,  in  contracting  for  the  sale  of  her 
separate  property,  she  receiving  the  money.  The 
court  said  that  the  statutes  of  18C0  and  1862  provide 
that  "the  wife  may  sue  and  be  sued  in  all  matters 
having  relation  to  her  sole  and  separate  property," 
and  further  that  the  action  was  clearly  for  "matters 
having  relation  to  her  sole  and  separate  property." 
The  matters  related  "  to  the  management  and  disposi- 
tion of  her  property." 

In  the  second  case  the  action  was  for  damages  to 
the  plaintiff  by  the  escape  of  the  cattle  of  the  defend- 
ant from  land  which  was  her  separate  property,  and 
their  trespassing  upon  defendant's  land.  The  court 
said  that  the  action  was  founded  upon  the  duty  of  the 
owner  of  land  to  keep  domestic  animals  from  straying 
upon  and  injuring  the  premises  of  others.  Such  a 
duty  had  relation  to  the  property  that  might  be  owned 
solely  by  a  married  woman,  and  that  therefore,  under 
the  statutes  of  1860  and  1862,  she  might  be  sued  in  the 
same  manner  as  if  she  were  sole. 

Neither  of  the  cited  cases  will  support  the  present 


140  CIVIL    PROCEDURE    REPORTS. 

Muser  v.  Lewis. 

recovery,  if  the  tort  done  by  the  appellant's  wife 
related  to  her  sole  or  separate  property.  On  the  other 
liand,  if  the  tort  did  not  rehite  to  the  wife's  property, 
the  juinciples  stated  in  the  cases  make  the  appellant 
liable. 

If  the  terms  of  the  statutes  are  not  to  be  enlarged 
by  construction,  for  the  reason  that  their  meaning  is 
clear  without  it,  it  would  seem  to  be  certain  that  the 
title  fo  the  goods  always  remained  in  the  plaintiffs, 
and  that  they  never  became  the  properly  of  appel- 
lant's wife.  Therefore  the  tort  did  not  relate  to  the 
wife's  separate  property.  If  it  be  su])[)()sed  that  the 
wife  did  gain  a  property  of  some  kind  by  the  transac- 
tion, the  tort  was  a  separated  matter  from  that  which 
had  the  appearance  of  confeiring  title,  and  had  no 
essential  connection  with  it,  and  so  the  tort  was  per- 
sonal to  the  wife,  as  distinguished  from  one  relating 
to  her  property. 

A  reference  to  another  part  of  the  statutes  should 
be  made.  Section  2  of  the  Laws  of  18G0,  chapter  90, 
provides  th;it  a  married  woman  may  carry  on  any 
trade  or  business,  and  peiform  any  labor  oi- services  on 
iier  sole  and  separate  account.  Coleman  v.  Purr  (93 
JV.  Y.  17).  shows  that  the  geneiality  of  the(;lause  as  to 
seivices  siiould  be  restiained,  so  that  it  does  not  in- 
clude services  done  by  the  wife,  for  her  husband  and 
the  faniily.  The  ground  of  the  decision  was  that  the 
objects  which  weie  to  be  obtained  by  the  statutes,  and 
rhe/nischiefs  which  they  were  intended  to  remedy, 
snggest^d  that  there  should  be  such  a  restriction,  also 
considering  that  the  common  or  former  law  reniains, 
exce[)ting  to  the  extent  it  is  clearly  annulled  by  a  sub- 
sequent statute  (Bertles  v.  Nunan.  92  N.  Y.  152).  In 
like  mannei-,  it  may  be  said  as  to  the  power  of  a  mar- 
ried woman  to  carry  on  any  trade  or  business,  on  her 
own  account,  that  it  was  not  intended  to  embrace  a  jjer- 
sonal  tort  that  had  no  real  connection  with  trading  or 


CIVIL    PROCEDURE    REPORTS.  14] 


Muser  v.  Lewis. 


carrying  on  a  business.  In  a  sense,  it  is  an  anomaly, 
in  view  of  the  real  independence,  personally,  of  a  wife 
that  her  husband  should  be  liable  for  her  tort  of  which 
he  may  know  nothing,  when  and  where  and  how  it  was 
done.  The  hardship  is  not  increased  by  his  being 
liable  for  a  tort,  the  time  of  which  is  within  the  hours 
a  wife  may  choose  as  the  time  when  she  sayq  she  is 
transacting  her  business,  and  at  the  place  where  her 
business  is  done,  and  it  has  but  a  circumstantial,  but 
no  real  connection  with  buying  or  acquiring. 

Several  parts  of  the  statutes  indicate  that  they  did 
not  contemphite  a  soJe  liability  of  the  wife  for  a  tort. 
Incidental!}^  committed  b}^  her,  when  she  was  carrying 
on  a  separate  business. 

The  first  section  of  chapter  90,  Laws  of  1860,  pro- 
vides that  the  property  which  any  married  woman  ac- 
quires by  her  business  carried  on,  on  her  separate-  ac- 
count, shall  be  her  separate  property.  Section  2  is,  the 
earnings  trom  her  trade  shall  be  her  separate  property. 
Section  8  provides  that  no  bargain  or  contract  entered 
into  by  any  married  Avoman,  in  or  about  the  carrying 
on  of  any  trade  or  business,  shall  be  binding  upon  her 
husband,  or  render  him  or  his  property  in  any  way 
liable  therefor.  It  will  be  observed  that  no  reference 
is  made  to  the  wife's  tt^rts.  In  view  of  These  enact- 
ments, section  7  states  when  a  married  woman  may  be 
sued  in  the  same  manner  as  if  she  were  sole.  It  is  not 
declared  that  she  may  be  sued  in  matters  having  rela- 
tion to  her  sepaiate  business,  but  in  matters  having 
relation  to  her  sole  and  se[)arate  [)ropert  \^  It  has  been 
already  consideied  (hat  the  tort  in  question  did  not 
fehile  10  her  pro[)erty. 

The  learned  counsel  l\)r  the  appellant  presents  an 
arguMienr  of  weiglit.  It  is,  that  if  a  married  woman 
may  acquire  separate  property  by  her  own  action,  as 
if  she  were  sole,  it  is  not  intended  that  there  can  be 
legal  i^ower  of  interference  by  her  husband  with  any 


143  CIVIL    PROCEDURE    REPORTS. 

Muser  v.  Lewis. 

Steps  she  may  take  to  acquire  that  property,  and  if 
tliere  be  no  power  of  interference  there  should  be  no 
legal  responsibilit3\  This  seems  to  be  sufficiently  an- 
swered by  considering  that  the  sole  liability  of  mar- 
lied  women  is  such  only  as  the  legislature  has  seen  lit 
to  make,  and  that,  as  we  have  seen,  is  confined  to  mat- 
ters that  relate  to  what  is  in  fact  the  married  woman's 
sole  property. 

They  affect  a  more  recent  statute.  Section  450  of 
the  Code  of  Civil  Procedure  remains  to  be  examined 
and  particularly  with  leference  to  the  learned  opinion 
in  Fitzgerald  ?;.  Quann,  1  JV.  F.  Cio.  Fro.  27:S.  The 
court  in  that  case  thought  that  the  last  clause  of  the  sec- 
tion: "  It  is  not  necessary  or  proper  to  join  her  husband 
with  her  as  a  party  in  any  action  or  special  proceed- 
ing affecting  her  separate  property,"  did  not  imply 
th:it  it  was  necessary  to  join  him  in  other  cases,  be- 
cause the  previous  part  ol'  the  section  declared  other- 
wise, and  embraced  all  actions  against  married  women. 
But  to  me,  it  seems  that  the  fisst  part  has  no  regula- 
tion for  the  bringing  of  actions,  or  when  or  as  to  what 
a  married  woman  might  be  sued  as  if  she  were  single. 
It  only  says  that  when  she  is  sued,  whether  on  a  joint 
or  individual  claim  against  her,  her  husband  should 
not,  as  by  common  law  he  might,  ai)point  an  attorm^y 
to  appear  for  her  and  defend,  but  she  appears  siil 
juris,  a'nd  defends  as  if  she  were  not  married,  [f  this 
be  correct,  it  has  no  bearing  U[>on  the  implication  of 
the  second  part  of  the  section. 

1  am  f)f  o[)inion,  therefore,  that  the  a[)pe]lanr  was 
responsible  to  the  plaintifTs.  If  he  wei(^  liable,  iherr! 
is  no  qu«-stion  iu  rhe  c:ise  as  to  liis  being  inadtMlelVml- 
ant  jointly  with  the  wife,  against  wlu^ni  an  individual 
liability  is  claimed.  She  wuuld  l)e  (hf  parry  ro  raise 
that  question,  and  she  has  n(^t  done  so. 

One  other  matter  demands  attention.  It  appeared 
by  plaintiff's  case,  that  after  the  receiving  of  the  goods 


CIVIL    PROCEDURE    REPORTS.  143 


Muser  v.  Lewis. 


by  the  appellant's  wife,  the  ])laintiffs  had  recovered 
certain  of  the  goods,  and  liad  also  received  certain 
nionej^s  from  a  Mrs.  Miller,  in  payment  of  .1  judgment 
obtained  for  the  conversion  b^"  herof  the  goods  involved 
in  this  action,  the  appelkmUs  wife  having  sent  the 
g<'ods  to  Mrs.  Miller.  The  conrt  refnsed  to  chai-ge,  as 
requested  by  the  appellant's  counsel,  that  tlui  jury 
should  deduct  from  the  value  ol*  tlie  goods  converted 
the  sum  paid  by  Mrs.  Miller.  This  requpst,  I  think, 
should  have  been  granted,  undej"  the  case  of  Knapp  v. 
Roche  (18  Week.  Bif/.  324).  It  was  not  matter  of  de- 
fense, but  concerned  the  ])l:iintiflV  }n'ool' as  to  what 
damage  they  had  iti  I'ncr  suffered. 

It  is  not  necessary,  however,  to  order  a  new  trial  on 
this  ground.  The  plaintiffs  proof  was  that  he  liad 
received  from  Mrs.  Miller  a  sum  of  money,  which,  with 
what  the  couit  directed  should  be  deducted  for  other 
reasons,  amounted  to  a  sum  which  the  defendant's 
counsel  claimed  in  his  requests  was  the  stim  to  be  de- 
ducted, viz.:  $5,1200.  The  requests  did  not  specifically 
refer  to  this  sum,  but  they  were  based  upon  the  evi- 
dence as  given  by  the  plaintiffs,  and  there  was  no 
doubt  as  CO  this  sum  K  ing  all  that;  was  received  by 
plaintiffs.  The  court  instriu;ted  the  jury  to  deduct  a 
parcel  of  this  amount,  to  wit,  $2,224.76,  but  the  rest, 
that  is,  $2,975.24,  should  have  been  deducted.  This 
may  now  be  deducted  from  the  verdict,  as  that  ascer- 
tained the  value  of  the  goods,  without  including  in- 
terest. 

The  judgment  appealed  from  should  be  reversed, 
unless  the  plaintiff  stipulate  chat  from  the  amount  of 
the  verdict  $2,975.24  be  deducted,  and  in  case  of  such 
stipularion  the  judgment  as  so  reduced  is  affirmed, 
wdthout  costs  of  appeal  to  either  party. 

Ingraham,  J.,  concurred  in  the  result. 


144  CIVIL    PROCEDURE    REPORTS. 


Dock©.  South  Biooklvii  Saw  Mill  Co. 


DOCK   V.   THE  SOUTH  BROOKLYN  SAW  MILL 

COxMPANY,  ET  AL. 

Supreme  Court,    Kings    County,    Special   Term, 
August,  1884. 

§§  755-757. 

Recival  and  continuance  of  action  in  case,  of  death  of  plaintiff ~  Assignee 
—  Counter-daim,. 

"Wliere  in  an  action  against  a  corporation  to  foreclose  a  mortgage  for 
$40,000,  a  counter-claim  was  interposed  for  $140,000,  moneys  al- 
leged to  iiave  been  misappropriated  by  the  plaintiir  while  w  triistew 
of  the  defendant,  and  tiie  pliiintiff  died  before  the  cause  was  tried, 
and  thereafter  one  "  S."  moved  to  be  allowed  to  continue  the  action, 
and  to  be  substituted  as  plaintiff  on  proof  by  affidavit  that  the  |)laiiit- 
if[  left  a  will,  which  was  duly  admitted  to  probate  in  Pennsylvania; 
that  the  executrix  named  therein  had  duly  qualified,  and  that  the 
executrix  was  sole  legatee  under  the  will,  and  t hereafter  assijrned  the 
mortgage  to  said  "  S.^—Held,  that  the  motion  should  be  granted; 
that  the  counter-claim  did  not  affect  the  question  as  the  executrix 
could  assign  the  bond  and  mortgage,  and  the  assignee  could  bring 
a  new  suit  therefor  in  which  the  counter-claim  could  be  used  only 
to  the  extent  of  a  set  off  against  the  mortgage. 

McLauchlin-c.  Brett  (2  N.  T.  Viv.  Pro.  104),  followed. 

{Decided  August  2,  1884.) 

Motion  by  one  Isaac  Sclilictpr  that  the  action  be  re- 
vived and  continued,  and  tlinthe  be  substituted  in  the 
place  of  the  plaintiff,  now  deceased. 

This  action  was  commenced  in  March,  1883,  for  the 
foreclosure  of  a  niortga<^e  on  real  property  made  by 
the  defendant,  a  domestic  cori)oration,  to  plaintiff  to 
secure  the  [jayment  of  the  sum  of  $4(),0{)0. 

The  answer  set  up  among  other  defenses,  that  no 
consideration  had  been  given  for  the  mortgage,  and 
also  a  counter-claim  for  $140,000,  moneys  alleged  to 


CIVIL    PROCEDURE    REPORTS.  U5 

Dock  V.  South  Brooklyn  Saw  Mill  Co. 

have  been  niisappropriared  by  the  j)ljiiiitiff  while  a 
trustee  of  the  defeiKhint  ;  it,  {ilie<>ed  that  there  had 
been  for  many  years  mutual  dealings  and  accounts 
between  plaintiff  and  defendant  wherein  upwards  of 
$1,000,000  were  involved  ;  that  the  plaintiif  while  a 
trustee  of  the  defendant  had  dealt  unl'aiily,  and  that 
tlie  accounts  of  such  Iranyactiors  if  properly  made, 
would  show  an  indebtedness  to  the  defendant  fiotn 
i:)Uiin tiff  of  over  $140,000;  it  demanded  an  accounting 
and  judgment  for  the  sum  found  due. 

Issue  was  joined  on  the  counter-claim  b.y  the  service 
of  a  reply  in  November  1883  setting  up  the  statute  of 
limitations  ;  denials  of  allegations  contained  in  the 
answer  and  other  defenses. 

In  February,  1884,  and  before  the  trial  of  the  cause, 
the  plaintiff  departed  this  life. 

Nothing  further  was  done  in  the  case  until  Angust, 
1884.  The  jdaintiff  always  resided  prior  to  and  at  the 
time  of  his  decease  in  the  city  of  Philadelphia,  Pa. 
A  notice  of  motion  and  affidavits  entitled  in  the  action 
were  served  on  defendants  attorney  in  August  1884 
seeking  for  an  order  '•'■  directing  that  the  above  entitled 
action  be  continued  by  Isaac  Schlicter  as  plaintiff  in 
place  of  Luther  Dock  plaintiff  deceased,  and  granting 
the  said  Isaac  Schlicter  leave  to  amend  the  complaint 
herein  as  he  shall  be  advised." 

The  moving  affidavits  were  madeby  deceased  plaint- 
iff's attorney  in  the  case,  by  one  Rex,  the  alleged  clerk 
of  the  orphans'  court  of  the  county  of  Philadelphia,  by 
s:iid  Isaac  Schlicter  the  alleged  assignee  of  the  mort- 
gage and  cause  of  action  b\^  assignment  from  one  Su- 
san V.  Dock,  the  alleged  executrix  and  sole  legatee  ot 
decedent ;  a  copy  of  alleged  assignment  of  said  mort- 
gage signed  by  said  Susan  V.  Dock  individually  v^'as 
also  annexed  to  the  motion  papers. 

The  moving  affidavits  were  in  effect  that  plaintiff 
had  died  ;  had  left  a  will ;  that  it  had  been  proved 
Vol.  VI— 10 


146  CIVIL    TROCEDURE    REPORTS. 

Dock  V.  South  Brooklyn  Saw  Mill  Co, 

under  the  laws  of  Pe-nnsylvnriia  niid  admitted  to  pro- 
bate there  ;  that  since  the  death  of  phiintilT,  the  execu- 
trix (said  Snsan  V.  Dock),  luuiied  in  said  will  had 
qualified  in  Peniisyivauia  under  its  la\>s,  and  had  exe- 
cuted an  assif^iiment  of  (he  cause  of  action  and  of  the 
mortgage  and  bond  to  Isaac  Schlicter ;  said  Isaac 
Schlicter  also  a  resident  of  Philadelphia  deposed  that 
he  had  bought  the  same  from  said  executrix.  No  copy 
of  any  will  nor  official  certificate  by  any  officer  showing 
executor's  appointnjent  was  produced  on  the  motion, 
nor  did  it  appear  that  any  will  of  phiiiititf  had  ever 
been  filed  in  any  office  for  probate  within  this  state. 

The  said  moving  papers  were  returned  within  twen 
ty  four  hours  to  the  attorney  for  the  ])l:iinfifT  and  for 
tlie  applicant  Isaac  Schlicter  who  seived  them  with 
the  following  objections  indorsed  thereon. 

"The  within  affidavits  and  pa[)ers  are  herewith 
respectfully  returned  upon  the  ground,  first,  that  the 
service  of  the  same  is  unauthorized  by  the  law  and  the 
rules  of  practice  of  the  court  of  the  state  of  New  Yoi  k, 
the  said  plaintiff  having  died  on  or  about  February  G, 
1884  ;  on  the  further  ground  that  the  controversy  late- 
ly existing  between  one  Luther  Dock  and  this  defend- 
ant cannot  under  the  ciicunistances  be  brought  before 
the  court  upon  saidai>|)lication  of  yourself  as  attorney 
for  the  plaintiff  and  of  one  Isaac  Schlicter,  the  said 
Schlicter  and  yourself  as  his  attorney,  being  stiangers 
to  this  matter,  and  on  the  ground  that  j^ou  are  in  no 
respect  qualified  or  entitled  to  make  or  serve  said  pa- 
pers in  the  said  suit  refeired  to." 

Notwithstanding  the  return  of  the  papers  the  mo- 
tion was  thereafter  argued. 

Tunis  O.  Bergen^  for  the  motion. 

Cited  Green  v.  Martine,  1  N.  Y.  Cio.  Pro.  129  ; 
Smith  V.  Zalinski,  94  li.  Y.  619;  Holsman  v.  St. 
John,  90  Id.  461  (rev'g  2  N.  Y,  Civ.  Pro.  48). 


CIVIL    PROCEDURE     REPORTS.  147 

Dock  V.  South  Brooklyn  Saw  Mill  Co. 

Manley  A.  Raymond^  opposed. 

The  action  by  plaintiff's  death  was  stayed  as  to 
every  person  other  than  phiintiff's  executor  or  ad- 
ministrator. In  Rogers  »/ Adriance  (22  How,  Pr.  97)-, 
it  was  heJd,  "The  doctrine  of  privity  has  never  been 
carried  so  far  as  to  autliorize  a  revivor  in  a  suit  brought 
by  a  party  in  interest  who  dies,  and  the  appointment 
of  an  executor — no  revival. by  liim,  but  a  transfer  of 
the  right  and  subject  of  the  action,  and  a  revival  by  the 
assignee."  The  affidavits  were  not  legal  or  proper 
evidence  of  any  of  the  facts  respecting  the  will  of 
decedent ;  its  validity,  contents,  probate  or  effect,  to 
nvake  a  \iTO\)ex  prima  facie  case  showing  legal  succes- 
sion to  the  alleged  assignee  and  proposed  ])laintiff.  A 
copy  of  the  will  (if  any)  should  tirst  be  exemplified  and 
authenticated  and  produced  on  the  motion  as  required 
by  sections  2695.  2703,  2705  of  the  Code.  See  also  10 
How.  Pr.2^'d.  The  moving  pai)ers  left  it  undecided 
whether  the  proposed  applicant  Schlicter  had  any 
true  legal  relation  to  the  case.  The  applicant  Schlicter, 
even  if  proper  proof  of  assignment  and  succession  had 
been  adduced,  should  not  be  allowed  to  be  substituted 
as  plaintiff  in  the  action  because  of  the  issues  raised 
by  the  counterclaim  and  reply.  The  motion  if  granted 
would  prejudice  the  defendants  in  so  far  as  they  were 
a^jtors  in  the  case. 

"Where  a  substitution  will  prejudice  any  right,  or 
interest,  or  remedy  of  the  defendant,  the  court  will 
either  refuse  to  permit  it  or  grant  it  only  such  terms 
as  will  x^rotect  the  defendant  from  injury"  (Howard 
«.  Taylor,  11  Hoio.  Pr.  380;  S.  C,  5  Duer,  604). 

"  Where  a  defendant  interposes  a  counter-claim  in 
an  action  and  asks  for-  affirmative  relief  and  issue  is 
joined  upon  the  claim,  he  becomes  an  actor  in  the  case 
and  may  i^roceed  in  it  as  if  he  were  in  fact  a  plaintiff  " 
{43  How.  Pr.  272  ;  affirmed  in  Livermore  v.  Bainbridge, 


148  CIVIL    PROCEDURE    REPORTS. 

Kaufman  v.  Lindner. 

49  N.  Y.  129 ;  Gleason  v.  Niven,  2  Duer,  643  ;  Potter 
V.  Van  Vranken,  36  N.  Y.  619). 

CuLLEN,  J. — The  case  of  McLachlin  v.  Brett  (2  N. 
Y.  Civ.  Pro.  194)  is  on  all  fours  wilh  this  case,  except 
in  respect  to  the  counterclaims.  The  appeal  to  I  he 
court  of  appeals  from  the  decision  in  that  cnse  was 
dismissed  and  the  case  must  be  considered  as  overrul- 
ing the  case  of  Rogers  v.  Adriance  (22  How.  Pr.  97).  I 
do  not  think  the  counter-claim  herein  affects  Mieques- 
tion.  The  executor  could  assign  the  bond  and  mort- 
gage, and  the  assignee  could  certainly  bring  a  new  suit 
therefor  in  which  the  counter-claim  could  be  used  only 
to  the  extent  of  a  set-off  asrainst  the  mortgage. 

The  same  can  be  done  in  this  case. 


KAUFMAN  AND  ANOTHER  V.  LINDNER. 

City  Court  of  New  York,  Sppxial  Term,  June, 

1884. 

§§  549,  snbd.  4,  12G8. 

Bankruptcy. —  When  juihjmcnt  not  discliarged  of  record  on  account  of 
debtor^s  discJiarcjc  in.  —  Fraud. —  What  amounts  to,  in  con- 
tracting liability. — Xccessity  rf  jdr.adinrj. 

Where,  on  a  motion  I)}- a  judgment  debtor  to  disohargc  a  judgment  of, 
record  under  section  12G8  of  tile  Code  of  Civil  I'rotcdurc,  on  X\\'i 
ground  that  he  had  been  discliarged  in  liaiikruptey,  it  appeared 
tliat,  although  the  uetion  was  to  n  C'>ver  on  contract  for  goods  soid 
and/delivered,  and  money  loaned,  an  order  of  nrrest  \v;is  granted  in 
the  action  o!i  tlie  grouml  that  the  sales  aud  loans  were  induced  by 
the  false  and  fraudulent  representations  of  the  jmlgnunt  debtor, 
and  that  he  had  removed  and  concealed  hij  properly  for  the  pur- 
pose of  defrauding  his  creditors,  and  he  did  not  answer  or  demur 
to  the  complaint, — Held,  lliut  the  debt  was  not  discharged  by  the 


CIVIL    PROCEDURE     REPORTS.  149 

Kiiufumii  V.  Lindner. 

proceedings  in  ijankrnptcj%  and  the  motion  sliould  be  denied  ;[■•]  that 
purchases  made  with  the  intent  of  not  paying  for  them  are  fraud- 
ulently contracted,  and  debts  thus  contracted  are  not  discharged 
by  a  discharge  in  bankruptcy ;[']  tliat  the  judgment  did  not  merge 
the  alleged  fraud,  and  the  court  can,  for  the  purpose  of  the  bank- 
ruptcy statute,  go  behind  tlic  judgment  to  see  whether  the  claim 
upon  which  it  was  recovered  was  created  by  fraud. PJ 

Prior  to  the  enactment  of  ciiapter  542  of  the  La  ws  of  1871),  adding  sub- 
division 4  to  section  .'549  of  the  Code  of  Civil  Procedure,  the  com- 
plaint in  an  miction  on  contract  in  whicli  the  arrest  of  the  defendant 
was  sought  on  the  ground  of  fraud  in  contracting  the  liability, 
should  not  contain  the  allegations  of  fraud,  and  the  nature  of  llie 
action  and  character  of  the  claim  in  such  a  case  was  notdetermined 
by  the  demand  of  the  complaint.['J 

(DeciLed  June,  1884.) 

Motion  to  cancel  nnd  discharge  a  judgment  of  re- 
cord under  section  1268  of  the  Code  of  Civil  Proced- 
ure, 

The  opinion  states  the  facts. 

Hyatt,  J. — This  is  a  motion  by  a  judgment  debtor, 
claiming  to  have  been  discharged  in  bankruptcy  from 
the  debt  on  whicli  the  judgment  in  this  tiction  was 
recovered,  for  an  order  directing  the  clerk  of  this  court 
to  cancel  and  discharge  the  said  judgment  of  record. 

The  morion  is  made  under  and  pursuant  to  section 
12G8  of  the  Code  oF  Civil  Procedui-e.  tiiid  the  fncts  aro 
as  follows  :  The  plaintiffs  recovered  judgment  against 
th«  defendant  May  21,  1874,  lor  $416.23  on  a  demand 
for  goods  sold  and  delivered  and  for  money  loaned  by 
them  to  the  defendant,  which  became  due  and  payable 
before  April  27,  1S74. 

On  said  last  mentioned  day  proceedings  in  bank- 
ruptcy were  begun  against  the  defendant,  in  which  he 
is  called  ''Israel"  Lindn*^r,  and  on  May  9,  1S74.  he 
was  duly  adjudicated  a  bankrupt.  On  May  22.1882, 
the  defendant  was  discharged  in  bankruptcy  under  the 
name  of  "  Israel "  Lindner  from   the  pa^"^'*ats   ^f  all 


J50  CIVIL  "PROCEDURE    reports; 

Kaufman  v.  Lindner. 

debts  clue  from  him  on  and  before  April  27,  1874,  not 
excepted  by  section  6117  of  the  Revised  Statutes  of 
the  United  States. 

An  order  of  arrest  was  granted  and  the  defendant 
arrested  thereunder,  as  appears  by  the  certificate  of 
the  sheriff  of  the  service  of  the  order,  affidavits  arid 
summons  ;  the  defendant  appeared  in  the  action,  butj- 
failed  to  answer  or  demnr  to  the  complaint. 

The  affidavits,  upon  which  the  order  of  arrest  was 
j;ranted,  aver  the  purchase  of  goods  by  the  defendant 
from  the  plaintiffs  upon  his  representations  that  he 
liad  a  valuable  stock  of  jewelry  in  his  store  ;  that  by 
reason  of  i)aying  out  large  sums  of  money  he  wasthelir 
short,  but  expected  soon  to  pay  all  he  owed  plaintilfs  ; 
that  he  owed  very  little  to  any  one  else,  and  that  his 
stock  was  all  paid  for  except  a  few  hundred  dollars  ; 
they  further  aver  that  the  plaintiffs  believing  and 
relying  ui>on  the  representations  of  the  defendant, 
sold  and  delivered  to  him  a  quantity  of  goods  ;  that 
the  said  representations  were  false;  that  the  defend- 
ant was  wholly  insolvent ;  that  he  did  not  pay  eiiher 
the  plaintiffs  or  others  to  whom  he  was  largely  in- 
debted, and  that  he  had  removed,  concealed  or  se- 
creted the  said  stock  from  his  store  for  the  purpose  of 
defrauding  his  creditors. 

Section  5117  stipra,  provides  that  ''no  debt  cre- 
ated by  the  fraud  of  the  bankrupt  siiall  be  discharged 
by  i)roceedings  in  bankru})try."  Claims  usually  (;otn- 
prised  under  this  title,  are  thof^e  which  have  been  in-  , 

cuired  bv  any  false  represtMitatious  or  ju^teuse  of 
[']  the  bankiupt.  Purchases  m;ide  with  i  he  precoii- 
Cf^ived  ititeni  of  not  paying  for  them,  are  fraud- 
uh'Utly  contracted,  and  the  debts  thus  arising  are  not 
discharged  under  this  section  (Stewart  v:  Emerson, 
8  Benedict  [U.  S.  Circ]  4G2). 

The  judgment  in  this  action  did  not  meigo  the 
[']     alleged  fraud.;  the  court  can,  for  the  x^urpuses  oi 


CIVIL    PROCEDURE     REPORTS.  151 

Kauf-iiau  v.  Lindner. 

the  bankruptcy  starute,  go  beliind  the  judgment,  to 
see  whether  the  cUiiin  upon  which  it.  was  recovered 
wjis  created  by  fraud  {I/i  re  Patterson,  1  Benedict 
[  U.  S.  Circ.'\  307  ;  In  re  Whitehouse,  4  Id.  63  ;  Warner 
B.  Kronkhite,  13  Id.  52). 

The  defendant  contends,  liowever,  that  this  action 
was  upon  conlruct,  because  the  coniphiint,  which  was 
served  after  the  granting  of  the  order  oi"  arrest,  was 
for  a  sum  of  mone}'  only,  for  goods  sold  and  delivered 
and  money  loaned,  and  that  the  claim  upon  which  the. 
judgment  was  recovered,  was  Iherefore  discharged  by 
the  operation  of  the  defendant's  discharge  in  bank- 
ruptcy. 

The  nature  of  tlte  action  and  character  of  the 
P]  claim  is  not  tobe  determined  in  the  case  at  bar,  by 
the  demand  of  the  complaint,  for  the  reason  that; 
prior  to  the  amendment  of  1879*  (adding  subdivision  4 
.to  section  549,  Oode  C>v.  Pro.),  it  had  been  well  settled 
that  in  this  class  of  cases  the  complaint  should  not 
contain  the  allegations  of  fraud. 

In  my  judgment  the  affidavits,  upon  which  the 
[']     Older  fif  arrest   was  granted,  disclose  a  claim  in- 
curred by  the  false  representations  of  the  bank- 
rupt, which  was  not  discharged  by  the  jn'oceedings  in 
baidvruptcy. 

It  I  am  light  in  my  conclusion,  it  is  unnecessary  to 
consider  whether  the  defendant  is  entitled  to  the 
benefit  of  a  discharge  granted  to  him  in  the  name  of 
"  Israel  "  instead  of  Isidore. 

The  motion  is  denied,  with  $10  costs. 

*  Laws  o/'1879,  chap.  543. 


152  CIVIL     PROCEDURE    REPORTS. 


Davenport  Glucose  Co.  v.  Taussig. 


DAVENPORT  GLUCOSE  COMPANY,  Respondent, 
V.  TAUSSIG,  ET  AL.,  Appellants. 

Supreme  Court,  First  DEPARTME^fT,  General 
Term,  January,  1884. 

§§  837,  870  et  seq. 

Examination  of  party  he/ore  trial  in  action  to  recover  chattels  the  sale  of 
which  was  procured  hy  fraud. — Assignee  for  heiiefit  of  creditors. 

In  an  action  by  a  vendor  against  his  vendees  and  llieir  assignee  for 
the  benefit  of  creditors,  to  recover  the  possesnion  of  certain  cliattols 
forming  a  part  of  the  assigned  estate,  on  the  ground  that  tlio  ven- 
dees obtained  the  sale  and  possession  frauduhnth'.  the  assignee 
may  be  examined  as  a  party  before  trial,  and  as  many  questions 
may  be  asked  the  vendee-*  which  they  would  be  bound  to  answer  if 
Culled  upon  the  trial,  they  may  be  required  to  submit  to  an  exami- 
nation ))efore  trial.  On  such  nn  examination  they  are  not  bound 
to  criminate  themselves,  and  may  elaim  tlie  {>ersonal  privilege  of 
refusing  to  answer,  and  it  would  be  for  the  judge  to  determine,  as 
it  would  be  on  a  trial  at  circuit,  whether  the  questions  are  such  as 
they  are  not  bound  to  answer,  but  the  fact  that  such  questions 
may  be  put,  doi'S  not  seem  to  be  a  good  reason  for  holding  that  a 
party  cannot  be  examined  at  all  in  such  an  action. 

{Decided  May  9,  1884.) 

Appeal  from  an  order  of  tlie  special  term  denying 
motion  to  vacate  an  older  for  the  examination  of  tlie 
defendants  before  trial. 

The  facts  are  stated  in  the  opinion. 

W.  C.  Heppenhetmer,  for  appellants. 

The  general  term  of  this  court,  in  the  case  of 
Andrews  v.  Prince  (31  Ilun,  5^3:1),  have  held  that  in 
actions  upon  fiinid,  deceit  and  fraudulent  conspiracy, 
an  order  for  the  examination  of  a  party  defendant 


CIVIL    PROCEDURE     REPORTS.  153 

Davenport  Glucose  Co.  t.  Taussijj. 

before  trial  will  be  vacyh^d  when  the  object  is  to  pro- 
cure testimony  to  establish  the  fraud 

Where  on  the  retuin  day  the  party  moves  to  vacate 
on  the  ground  that  he  could  not  be  compelled  to  crim- 
inate himself,  the  burden  is  on  the  plaintiff,  the  .com- 
plaint not  having  been  served,  to  show  that  there  are 
material  matters  as  to  which  the  defendant  could  be 
examined,  and  op,  his  fculurt^  to  do  so  the  order  should 
be  vacated  before  the  defendant  is  sworn.  Corbett  v. 
Be  Comeau,  44  N.  Y.  Super.  Ct.  306;  S.  C,  5  Abb.  N. 
a  169  ;  Levy  ?).  Loeb,  44  N.  Y.  Super.  Ct.  291  ;  atf'd, 
75  iV^.  Y.  609.  On  tjje  return  of  the  order  for  the 
examination  of  witnesses  before  trial  Avliere  the  parties 
are  before  the  court,  a  motion  may  be  made  to  dis- 
charge it  on  affidavits,  without  giving  previous  notice 
or  serving  copies  of  such  aflSdavits.  Barker  v.  Wilder, 
«1  Hun,  584;  S.  C,  10  N.  Y.  Weekly  Dig.  252. 

A.  P.  Whitehead  and  Richard  Stackpoole  {Martin 
&  Smith,  attorneys),  for  respondents. 

The  privilege  of  the  witness  is  personal,  and  he 
may  waive  it.  The  counsel  should  be  permitted  to  ask 
the  question,  and  the  judge  should  advise  the  witness 
that  he  is  at  liberiy  to  decline  answering.  Southard 
V.  Rexford,  6  Cow.  254  ;  People  i\  Bodine,  1  Denio.,  281. 
The  court  should  determine  whether  the  answer  the 
witness  may  give  can  criminate  him.  People  /?.  Mather, 
4  Wend.  229.  In  an  action  for  usury,  where  witness 
declined  to  answer  on  the  ground  that  he  would  crim- 
inate himself,  held  that  the  court  should  decide 
whether  the  witness  should  be  compelled  to  answer. 
See  Fellows  v.  Wilson,  31  Barb.  162.  A  party  cannot 
object  that  the  answer  may  tend  to  criminate  the  wit- 
ness. The  objection  is  personal  to  the  witness  only. 
People  D.  Carroll,  ^Parker's  Cr.  73. 

The  plaintiffs  should  be  allowed  to  examine  the 
defendants   subject  to  their  right  to   object   to   such 


154  CIVIL    PROCEDURE     REPORTS. 

Davenport  Glucose  Co.  v.  Taussig. 

questions,  if  any,  as  may  tend  to  criminate  or  degrade 
them.  The  general  term  of  this  court,  in  January, 
1881,  sustained  an  order  for  the  examination  of  de- 
fendants before  trial  in  an  action  to  set  aside  a  general 
assignment  of  creditors  on  the  ground  of  fraud.  See 
Tenny  v.  Mautner,  1  iV.  Y.  Civ.  Pro.  04.  The  plaintiff 
was  allowed  to  be  examined  before  tiial  by  the  defend- 
ant, whose  defense  was,  that  the  f)h»i'ififf  h«'id  made 
false  and  fraudulent  re[)resentai ions  in  regard  to  cer- 
tain goods.  Sprague  B.  Butterworth,  22  Ilun,  603. 
The  court  holding  that  the  phiintiff  could  claim  his 
privilege  if  questions  were  put  to  him  tending  to 
criminate  or  degrade  him.  The  justice  before  whom 
examination  of  a  party  before  trial  is  taken  may  limit 
examination.  Hutchinson  v.  Lawrence,  3  JV.  Y.  Civ. 
Fro.  98.  The  order  should  not  be  set  aside,  unless  the 
evidence  sought  relates  exclusively  to  fa  its,  which  if 
l)roved,  would  show  the  witness  was  guilty  of  a  crime, 
Canada  Steamship  Co.  v.  Sinclair,  3  N.  Y.  Civ.  Pro.  284. 

Davis,  P.  J. — This  is  an  appeal  from  an  order  of 
the  special  term  denying  motion  to  vacate  an  order 
directing  examination  of  defendants  before  trial.  The 
action  is  to  recover  possession  of  personal  property,  to 
wit,  250  barrels  of  glucose  alleged  to  have  been  sold 
by  the  plaintiffs  to  the  defendants  Taussig  and  Ham- 
nierschlag,  who  subsequently  made  a  general  assign- 
ment to  the  defendant  Barricklo,  for  the  benelifof  their 
creditors.  The  plaintiff  replevied  170  bairels  of  glu- 
cose. It  is  alleged  that  the  sale  and  possession  weie 
fraudulently  obtained. 

It  must  be  conceded  that  the  authorities  in  this 
disti-ict,  on  the  question  of  .the  right  to  make  an  order 
for  the  examination  of  parties  in  an  action  where  the 
plaintiff's  cause  of  action  is  for  an  alleged  fraud,  are 
somewhat  in  conflict.  There  is  no  case,  however,  we 
think,  that  holds  in  an  action  to  recover  possession  of 


CIVIL    PROCEDURE    REPORTS.  155 

Davenport  Glucose  Co.  v.  Taussig. 

personal  property,  wliere  the  obJBct  is  to  ascertain 
from  the  defendants  the  quantify  of  goods  that  came 
into  their  hands,  and  the  time  when  they  leceived  the 
same,  and  the  time  of  making  the  sale  or  transfer  of 
the  same  to  another  party,  and  the  quantity  delivered 
to  him,  &c.,  that  such  matters  are  not  proper  subjects 
for  this  preliminary  examination. 

In  this  case,  the  assignee  of  the  purchasers,  Bar- 
ricklo,  who  is  not  sought  to  be  charged  with  fraud- 
ulent conduct,  received  the  goods  from  the  defendants. 
No  reason  can  be  imagined  why  he  may  not  be  called 
and  examined  as  to  when  and  where  he  received  the 
same,  and  to  what  amount ;  and  to  prove  whatever 
might  be  necessary  touching  the  assignment  to  him  of 
the  goods  by  the  other  defendants,  and  the  disposition 
that  may  have  been  made  thereof.  It  can  liardly  be 
conceived  that  his  answers  to  such  an  examination 
can  be  supposed  to  subject  him  to  a  charge  of  fraud. 

In  respect  of  the  other  defendants,  it  is  very  ob- 
vious, as  it  seems  to  ns,  that  many  questions  may  be 
asked  which  they  will  be  bound  to  answer  if  called 
upon  the  trial,  and  if  in  the  course  of  such  an  exami- 
nation as  this,  questions  may  be  asked  which  they  de- 
cline to  answer,  on  the  ground  of  their  privilege,  their 
rights  are  precisely  the  same  as  they  would  be  upon 
the  trial,  if  the  same  questions  were  put  to  them  there. 
They  are  not  bound  to  criminate  themselves,  and  may 
claim  the  personal  privilege  of  refusing  to  answer. 
On  such  an  examination  it  would  be  for  the  judge  to 
determine,  as  would  be  on  a  trial  at  circuit,  whether 
the  questions  are  such  as  they  are  not  bound  to  answer. 

But  the  fact  that  some  such  questions  may  be  x^ut 
does  not  seem  to  be  a  good  reason  for  holding  that  a 
party  cLinnot  be  examined  at  all  in  an  action  of  this 
kind. 

The  cases  referred  to  by  the  learned  counsel  for  the 
appellants  do  not  go  far  enough,  we  think,  to  require 


15e  CIVIL     PROCKDLTRE     REPORTS. 

Fitzsiinraons  v.  Curley. 

US  to  hold  that  they  determine  this  case  adversely   to 
the  IPS  pendents. 

We  see  no  ground,  tlierefore,  for  interfering  with 
the  Older  of  the  court  below,  and  it  should  be  affirmed, 
with  $10  costs  and  disbursements. 

Daniels  and  Haight,  JJ.,  concurred  in  the  result. 


FITZSIMMONS,    Appellant,   v.   CURLEY,   Im- 
pleaded, Respondent. 

N.  Y.  Superior  Court,  General  Term,  May,  1884. 

§§  3268,  32C.9. 

Non-residence. — Security  for  costs. 

In  order  to  require  plaintiff  to  give  security  for  costs,  on  the  ground 
of  non-residence,  it  muut  appear  either,  tliat  ho  was,  wlion  the 
action  was  coinmeneed,  a  person,  residin*^  without  the  state,  or  that 
after  tlie  actiou  was  coimneneed,  he  ceased  to  be  a  resilient  of  this 
state. 

Where  defcnclimt,  witii  knnwledpe  of  the  facts,  proceeds  witjj  the 
trial,  it  is  too  late  to  move  for  security  for  costs. 

{Decided  June  IG,  1884.) 

Appeal  from  an  order  directing  plaintiff  to  file 
security  for  costs  as  a  non-resident. 

The  facts  appear  in  the  opinion. 
Adolphus  D.  Pape^  for  the  appellant. 
Oeorge  H.  Starr,  for  the  respondent. 

Per  Curiam. — In  order  to  require  the  plaintiff  to 
give  security  for  costs,  it  must  appear  either,  ficsl, 


CIVIL    PROCEDURE    REPORTS.  15"? 

Fitzsimnions  v.  Cuilcy. 

that  she  was.  when  the  action  was  commenced,  a  per- 
son residing  witliont  the  state  {Code,  §  3268),  or,  second, 
that  after  the  commencement  of  the  action  the  plaint- 
iff ceased  to  be  a  resident  of  the  state  (§  3269). 

There  is  no  evidence  that  plaintiff  was  not,  at  the 
commencement  of  this  action,  a  resident  of  this  state. 
Defendant  swears  that  one  Johnson  told  him  that 
X)laintiff  was  living  in  the  state  of  California,  and  had 
been  living  there  for  years.  Mr.  Bennett  says  that 
plaintiff  resided  in  this  state  up  to  about  a  year  ago, 
when,  he  is  informed,  she  left  on  a  visit  to  Portland, 
Oregon,  and  that  she  was  expected  back  soon  to  re- 
sume her  biisines  as  domestic.  It  thus  aj)pears  posi- 
tively that  she  was  a  resident  of  New  York  when  the 
action  was  commenced.  The  only  evidence  that  she 
has  ceased  to  be  a  resident  since  the  commencement  of 
the  action,  is  the  statement  of  Johnson  to  defendant; 
in  answer  to  that,  McNeil  informed  Mr.  Bennett  that 
she  is  expected  to  return  to  New  York  soon  and  is 
away  on  a  visit.  We  do  not  think  that  it  sufficiently 
appears  that  plaintiff  is  a  non-resident.  We  are  also 
of  the  opinion  that  defendant  by  proceeding  with  the 
trial  before  Judge  Fueedmax,  waived  his  right  to  the 
security  So  far  as  appears,  he  knew  all  the  facts  he 
has  stated  in  his  affidavit,  piior  to  commencing  the 
trial,  and  knowing  all  those  facts  he  proceeded  with 
the  trial  and  did  not  make  this a])plication  until  Judge 
Freedma>!  had  suspended  the  tiial  and  ordered  cer- 
tain issues  to  be  tried  by  a  jury.  It  was  then  too  late. 
Having  pi'oceeded  with  the  ti'ial  he  had  waived  his 
right  to  require  the  security  ^^Buckley  <).  Cxutta  Percha 
Co.,  3  K.   r.  Cir,.  Pro.  432). 

The  Older  should  be  reversed  and  motion  denied, 
with  810  costs  and  disbursements. 

Before  Sedgwick,  Ch.  J.,  and  Inqeaham,  J 


158  CIVIL    PROCEDURE    REPORTS. 


.  Jeaks  V.  Van  Brunt. 


JENKS,'  Respondent,  v.  VAN  BRUNT,  Appellant. 

Supreme  Court,  First  Department,  General 
Term,  March,  1884. 

§  1207. 

Appeal. — When  jufJgment  not    reversed  where  its  correction  depends  on 

credihiliti/  of  witness.  — Hediicing  judgment.  —  Poicer 

to  amend  complaint  on  appeal. 

Wiiere  it  appeared  tlmt  a  verdict  was  wrong,  if  the  evidence  of  the 
defendant's  witnesses  liiid  been  fully  credited,  and  it  was  manifest 
that  tlieir  tesiiniony  was  not  so  credited,  and  the  judge  before 
wliom  the  case  was  tried,  who'  was  an  able.aml  careful  judge", 
denied  a  motion  for  a  new  trial  on  the  ground  that  tlic'verdict  was 
against  the  weight  of  evidence, — Held,  tlnit  it  was  not  the  duty  of 
tlie  geneial  term  on  appeal  from  iiis  order  denying  such  motion,  to 
make  a  critical  examination  of  the  cvideufc  with  a  view  to  see 
whether  the  decision  of  the  motion  was  correct. 

"Where  a  verdict  was  for  a  small  amount  greater  than  the  chiini  for 
recovery  in  the  complaint,  and  it  did  not  appear  that  liie  attention 
of  the  court  below  iiad  been  called  t(»  the  subject  either  on  the  trial 
or  on  the  motion  for  a  new  trial, — Held,  that  it  was  doubtful, 
•whether  the  genorrd  term  on  appeal  could  permit  tlie  plaintilT  to 
amend  his  compliint  so  that  the  judgment  would  be  consistent, 
w^ith  the  case  made  and  emln-aced  within  the  issues-,  that  »h<!  judg- 
ment should  be  reduced  by  deducting  the  excess,  and  as  reduced,, 
iiffirmed. 

{Decided  May  9,  1884.) 

Appeal  from  judgment  entered  upon  verdict,  and 
from  order  denying  motion  for  new  trial  on  the  min- 
utes of  the  judge,  and  on  the  ground  that  the  verdict 
is  against  the  weight  of  evidence. 

Austin  S.  CsiiJiinf/,  for  api)ellant. 

Jo7m  BrooJcs  Leaolli,  for  respondent. 


CIVIL    PROCEDURE    REPORTS.  159 

Jeuks  v.  Van  Brunt. 

Davis,  P.  J. — This  action  was  tried  before  an  able 
and  careful  Judge,  and  the  motion  for  new  trial  on  the 
ground  that  the  verdict  was  against  the  weight  of  evi- 
dence was  made  before,  and  considered  by,  him,  and 
denied. 

On  looking  through  the  evidence  it  is  quite  appar- 
ent that  the  verdict  was  wrong,  if  the  testimony  of  tlie 
defendant  and  liis  witnesses  had  been  fully  credited 
by  the  jury.  But  it  is  manifest  that  their  testimony 
was  not  so  credited  ;  and  the  learned  jiulge  before 
whom  the  case  was  tried,  having  full  opportunity  to 
see  and  hear  the  witnesses  and  to  determine  their  rela- 
tive credibility  upon  the  motion  before  him,  refused 
to  interfere  with  the  verdict. 

Under  such  a  state  of  facts  we  do  not  think  it  our 
duty  to  attempt  a  critical  examination  of  the  evidence 
with  a  view  to  see  whether  the  decision  of  the  learned 
judge  upon  the  motion  Avas  correctly  disposed  of,  be- 
cause it  is  clearly  apparent  that  our  conclusion  would 
have  to  depend  upon  the  question  already  suggested, 
whether  the  testimony  on  the  part  of  the  defendants 
was  or  was  not  entitled  to  credit,  in  preference  to  that 
on  the  part  of  the  plaintiff. 

Under  such  circumstances,  we  think  it  our  duty  to 
affirm  the  order  denying  the  motion  for  new  trial. 
And  as  that  is  substantially  the  only  question  upon 
the  general  merits  of  the  case  in  the  appeal  from  the 
judgment,  the  same  result  will  necessarily  follow. 

It  seems  to  be  apparent  that  the  verdict  was  for  a 
small  amount  greater  than  the  claim  for  recovery  in 
tlte  complaint  with  interest  added  thereto.  That 
amount  seems  to  be  S39.34.  There  is  nothing  in  the 
papers  to  show  that  the  attention  of  the  court  below 
either  at  the  trial,  or  upon  the  motion  for  new  trial 
was  called  to  this  fact  or  that  any  suggestion  was  made 
on  the  subject.  If  the  attention  of  the  judge  had  been 
called  to  the  fact  he  would  undoubtedly  have  directed 


160  CIVIL    PROCIvDUKIi:     REPORTS. 


Ji'iiks  V.  Van  Brunt. 


a  deduction,  or  have  ordered  nix  amendment  of  the 
complaint  so  that  the  verdict  would  not  exceed  the 
amount  demanded  with  interest. 

Section  1207  of  the  Code  of  Civil  Procedure  pro- 
vides, that  where  there  is  no  answer  the  judgment  shall 
not  be  more  favorable  to  the  plaintiff  than  that  de- 
manded in  the  complaint,  and  where  there  is  an  answer 
the  court  may  permit  the  plaintiff  to  take  any  judg- 
ment consistent  with  the  case  made  by  the  complaint 
and  embraced  within  the  issue. 

We  do  not  see  why,  under  this  section,  if  the  at- 
tention of  the  court  had  been  expressly  called  to  the 
excess  at  the  trial,  he  could  not  have  permitted  the 
plaintiff  to  amend  his  complaint,  so  that  the  judgment 
would  be  consistent  with  the  case  made  by  it,  and  em- 
braced within  the  issue.  This  w^s  not,  howevei-,  done, 
and  it  is  doubtful  whether  this  court  possesses  the 
power  at  this  stage  of  the  case  to  make  such  an  amend- 
ment. 

If  attention  had  been  called  to  this  discrepancy 
between  the  sum  demandedin  the  complaint  and  the 
verdict  rendered,  there  would  appear  to  be  such  an 
error  as  to  require  this  court  to  reverse  the  judgment 
and  order  a  new  trial  unless  the  excess  should  be 
deducted,  without  costs  of  the  appeal  to  either  party. 

But  where  no  suggestion  is  made  until  the  argu- 
ment of  the  appeal,  we  think  this  court  ought  to  exer- 
cise its  discretion  as  favorabl}'^  to  the  plaintiff  as  may 
be  done  under  established  rules. 

We  think  we  ought  in  this  case  to  direct  that  the 
judgment  should  be  reduced  by  deducting  the  (excess 
as  of  the  date  of  the  verdict,-  and  as  so  reduced,  af- 
firmed with  costs. 

Daniels  and  Haiqut,  J  J.,  concurred. 


CIVIL    PROCEDUllE     REPORTS.  161 


Orden  Gerniiinia  v.  DcvcndtT. 


ORDEN  GERMANIA,  Respondent,  v.  DEVENDER, 
Appellant. 

N.  Y.  Common  PLf:AS,  General  Term,  May,  1884. 

§  631. 

Bill  of  particulars.  —  When  granted. 

It  appeared  from  the  complaint  that  plaintiff  was  a  mutual  benefit 
association,  duly  incorporated;  tliat  between  certain  dates  defend- 
ant w&s  the  treasurer  of  its  grand  lodge;  that  moneys  were  received 
lor  plaintiff  during  that  pciiod,  from  bvancli  lodges,  by  the  finan- 
cinl  secretary;  and  that  it  was  defendant's  duly  to  collect  said  mon- 
eys from  said  secretary.  The  complaint  then  sets  forth  in  various 
counts,  that  defendant  either  wrongfully  converted  to  his  own  use, 
$2,000,  or  by  wrongful  neglect  of  his  office  allowed  the  financial 
secretary  so  to  do, — Held,  that  plaintiff  should  furnish  a  bill  of  par- 
ticulars of  moneys  received  and  paid  by  defendant  and  also  by  said 
financial  secretary,  showing  dates,  amounts,  names  of  branch  lodges, 
etc. 

{Decided  Jum  30,  1884.) 

Appeal  by  defendant  from  order  of  sppcinl  term, 
so  far  as  it:  denies  the  full  relief  prayed  for  by  him  on 
bis  motion  for  a  bill  of  particulars. 

The  plaintiff  in  its  complaint  r.:leges  that  it  is  a 
corporation  duly  organized  under  the  laws  of  the  state 
of  INew  York;  that  by  virtue  of  the  powers  in  it 
vt-st.'d,  it  instituted  a  central  grand  lodge,  central 
board  of  linance,  &c.  ;  after  stating  the  duties  of  the 
central  grand  lodge,  that  it  was  the  duty  of  tlie  trea- 
surer elected  by  the  central  grand  lodge  to  receive 
from  the  tinancial  secretary  of  the  central  board  of 
finance  all  moneys  belonging  to  the  plaintiff,  and  after 
stating  the  duties  of  the  various  lodges  and  officers  of 
the  grand  lodge,  the  complaint  charges  that: 
Vol.  VI.— 11 


162  CIVIL    PROCEDURE    REPORTS. 

Orden  Germauia  v.  Devoiidcr. 

At  all  times  between  Octobei-  12,  1873,  nncl  Deceru- 
ber  16,  1881,  the  defendant  was  the  treasurer  of  the 
grand  lodge  in  the  state  of  New  Yoik  of  the  phnntiff. 

On  information  and  belief,  tliat  between  Februjiry 
14,  1879,  and  December  10.  1881,  the  bninch  lodges  of 
the  plaintilT  caused  lo  be  paid  to  the  linancial  secre- 
tary of  the  plaintiff,  in  the  grand  lodge  of  the  state  of 
New  York,  plaintiffs  moneys,  amounting  to  npwaids 
$68,100.50,  belonging  to  the  fund  to  help  the  sick. 

On  information  and  belief,  rhut  defendant  abnn- 
doned  the  performance  of  iiis  duties  to  the  linancial 
secretary  of  the  plaintiff  in  the  grand  lodge  of  I  he 
state  of  New  York,  and  negligently  failed  to  receive 
and  collect  from  said  tinnnciMl  secretary  all  nif)neys  so 
paid  to  liini  by  branch  lodges  of  phiintiff,  fioni  Febiu- 
ary  14,  1879,  to  December  16,  1881,  by  reason  of  which 
failure  the  said  financial  secretary  was  eniibied  to  and 
did  wrongfully  convert  to  his  own  use  the  sum  of 
$2,000  and  over  of  moneys  belonging  to  the  [ilaintiff. 

On  information  and  belief,  that  between  the  said 
February  14,  1879,  and  December  10, 1881,  divers  large 
sums  of  money  belonging  to  the  plaintiff,  exceeding 
the  sum  of  $2,000,  were  i)aid  to  and  had  been  received 
by  defendant  as  treasurer  as  aforesaid,  for  and  to  the 
use  and  benefit  of  plaintiff  ;  tiiat  defendant  was  re- 
quested to  pnj-  over  to  ])hiintitt'  Inrge  sums  of  money 
belonging  to  plaintiff,  viz.  :  $2,000  and  ovei',  and  has 
refused  to  pay  over  the  same. 

On  information  and  belief,  that  defendant  has 
wrongfully  converted  to  his  own  use  the  sum  of 
$2,000  and  over,  of  moneys  in  his  hands  belonging  to 
the  plaintiff. 

G.  LevT/,  for  appellnnt. 

Kaiffmann  &  Saunders^  for  respondent.  •  - 


CIVIL    PROCEDURE     REPORTS.  163 

Onlen  Gerraania  v.  Dev-ender. 

J.  F.  Daly,  J. — The  defendant  was  entitled  ^o  a 
bill  of  parliculars  which  should  show  what  monej's  it 
is  claimed  were  collected  by  him,  and  what  sums 
plaintiff  acknowledges  to  have  received  from  liim  be- 
tween February  14,  1879,  and  December  16,  1881,  the 
periods  mentioned  in  the  complaint. 

The  bill  of  particulars  should  also  specify  which  of 
said  sums  were  collected  by  defendant  and  which  of 
said  sums  weie  received  by  the  financial  secretary 
from  whom  defendant  should  have  collected  them. 
Plaintiff  must  prove  all  these  particulars  in  order  to 
sustain  its  claim  that  defendant  has  converted  $2,000, 
or  suffered  the  financial  secretary  to  convert  that  sum 
by  neglecting  to  collect  it,  and  the  defendant  is  enti- 
tled to  know  in  advance  of  the  ti  ial,  the  particulars  of 
the  claim  thus  to  be  proved.  The  statement  of  the 
complaint  on  the  point  is  too  general. 

It  is  no  answer  to  defendant's  application  for  a  bill 
of  particulars  to  say  that  he  is  presumed  to  know  what 
moneys  he  has  collected  and  what  moneys  he  has  paid 
over.  There  is  no  presumption  that  he  has  informa- 
tion of  moneys  which  he  has  collected  but  has  not 
accounted  for,  because  it  is  not  to  be  presumed  in 
advance  ot  the  trial,  that  he  has  been  guilty  of  such  a 
breach  of  trust  and  that  he  therefore  must  know  the 
particulars  of  his  guilt.  He  is  certainly  not  i)resumed 
to  know  what  a  third  party,  the  financial  secretary 
has  collected,  and  failed  to  account  for. 

The  order  should  provide  that  plaintiff  serve  a  bill 
of  part.icnlars  on  defendant's  attorney  within  ten  days 
showing  what  sums  it  is  claimed  were  received  by  the 
financial  secretary  of  plaintiff  between'  February  14, 
1879,  and  December  16,  1881,  from  branch  lodges  of 
plaintiff,  giving  dates,  amounts  and  from  what  lodges 
received,  also  showing  what  sums  it  is  claimed  were 
received  for  plaintiff  by  defendant  as  its  treasurer  be- 
tween the  same  dates,  giving  the  date  and  amount  of 


164  CIVIL    PROCEDURE    REPORTS. 

Anthony  v.  Wood. 

each  receipt,  and  from  whom  received.  Also  showing 
what  sums  it  is  claimed  were  paid  over  by  the  finan- 
cial secretary  to  defendant  and  by  defendant  to 
plaintiff  between  such  dates. 

Defendant  should  have  $10  costs  of  the  motion  and 
$10  costs  of  this  appeal  besides  disbursements  of  mo- 
tion and  of  ax"»peal. 

Beaoh,  J.,  concurred. 


ANTHONY,  Appellant,  v.  WOOD.     BOWE,  Sher- 
iff, ETC.  Respondent. 

Court  of  Appeals,  1881. 

§§  648,  649. 

Attachment. — Mode  of  levying  on  promissory  note,  etc. — Effect  of  prior 
fraudulent  transfer. 

Section  649  of  the  Code  of  Civil  Procedure,  ■which  provides  t!mt  when 
property  sought  to  be  attached  is  "  cai)able  of  manual  delivery,  in- 
cluding a  bond,  promissory  note  or  other  instrument  for  tlie  pay- 
ment of  money,"  the  levy  is  to  be  made  "by  taking  the  same  into 
the  sheriii's  actual  custody,"  merely  provides  for  tlie  mode  of  mak- 
ing  the  levy,  but  in  no  respect  alters  the  inherent  cliarat:ter  of  the 
property,  and  if  a  bond  or  note  sought  to  be  attached,  has  been 
transferred,  however  fraudulently,  no  lien  by  attachment  is  pos- 
sible and  the  possession  of  the  bond  or  note  by  the  officer  uiidi-r 
his  warrant,  accomplisltes  nothing. [',',"] 

Until  the  sheriff  has  obtained  actual  custody  of  property,  "capable 
of  manual  delivery  including  a  bond,  j)ioniissoiy  note,  etc.  or  other 
instrument  f«)r  the  payment  of  money  "  sought  to  be  attached,  he 
has  made  no  levy  and  can  make  none;[*,  ',]  service  of  a  copy  of  tlic 
warrant  upon  the  person  having  possession  of  such  property,  ;s  not 
a  levy  tiiercupon,  and  where  tite  sheriff  afterwards  obtains  posses- 
sion of  the  property,  his  possession  does  not  relate  back  to  the 
time  of  such  service.  [*J 

Thuiberr.  Blauck(oO  JV.  7.  80);  Castle  v.   Lewis   (78  Id.    131),  fob 


CIVIL    PROCEDURE    REPORTS.  165 

Anthony  v.  Wood. 

lowed :[']  Bills  v.  Nat'l   Park   Bank  (89  N.   T.   343),   overruled ;[»] 
Anthony  ».  Wood  (29  Hun,  239),  reversed.  [«J 
{Decided  June,  1884.) 

Appeal  by  plaintiff  from  an  order  granting  motion 
by  the  sheriff  of  the  city  and  county  of  New  York, 
that  he  be  made  a  party  defendant,  also  from  a  judg- 
ment in  his  favor. 

This  action  was  brought  to  foreclose  a  mortgage 
executed  by  the  defendant  Wood,  to  one  John  P. 
Brooks,  to  secure  the  payment  of  a  certain  note,  and 
by  said  Brooks  assigned  to  the  plaintiff.* 

The  respondent  Bowe,  late  sheriff  of  the  city  and 
county  of  New  York,  petitioned  to  be  joined  as  a  de- 
fendant, alleging  that  the  title  to  the  note  and  mort- 
gage were  in  him,  by  virtue  of  the  proceedings  under  a" 
certain  attachment  issued  to  him  against  the  property 
of  said  Brooks,  and  that  the  assignment  to  the  plaintiff 
was  fraudulent,  and  praying  a  foreclosure  and  sale 
under  the  mortgage  and  the  payment  of  the  proceeds 
to  him  to  be  held  under  the  attachment. 

This  motion  was  granted,  and  upon  the  trial,  judg- 
ment was  given  in  his  favor  for  the  relief  he  asked  for. 
From  the  order  granting  the  motion  and  said  judgment 
this  appeal  was  taken. 

It  appears  that  in  an  action  in  the  supreme  court, 
New  York  county,  brought  by  one  Helen  L.  Hall 
against  ^aid  John  P.  Brooks,  an  attachment  aga,inst 
his  property  was  issued  on  the  ground  that  he  was  u 
non-resident  of  the  state,  and  delivered  to  the  respond- 
ent Bowe,  as  sheriff  of  the  cily  and  county  of  New 
York,  for  service  ;  thatat  that  time  the  note  and  mort- 
gage in  question  were  in  the  possession  of  one  Clark 
Brooks,  an  attorney,  and  were  kept  in  the  safe  of  an- 
other attorney,  whose  office  was  in  the  building  in 
which  the  office  of  Clark  Brooks  was  ;  that  on  the  re- 

*  Reported  bek)w.  29  Uvn^  2^9. 


166  CIVIL    PROCEDURE    REPORTS. 

Antliony  v^  Woodi 

ceipt  of  the  warraat  of  attachment,  one  of  Bowels 
deputies  served  a  copy  thereof,  with  the  usual  notice,, 
and  also  made  special  demand  for  the  note  and  mort- 
gage upon  Clark  Brooks,  who  refused  to  deliver  the 
same  to  the  officer  ;  that  a  few  days  after  tlie  service 
of  tlie  warrant  the  bond  and  mortgage  were  transferred 
to  plaintiff  by  John  P.  Brooks,  the  same  remaining, 
however,  in  the  custody  of  Clark  Brooks,  whereupon, 
proceedings  w-ere  instituted  to  compel  the  deliver}'  of 
the  note  and  mortgnge  to  the  sheriff,  which  resulted 
in  their  delivery  to  the  sheriff  {vide  Hall  d.  Brooks, 
25  Hun,  571 ;  aff'd  2  N.  Y.  Civ..  Pro.  198). 

James  L.  Bhlwp.,  iox  appellant. 

Malcolm  Graham,  for  respondent 

Finch,  J. — If  one  proposition  of  the  respondent  is 
sound  it  settles  in  their  favor  every  serious  question 
raised  on  thisapT>eai.  That  proposition  is,  that  under 
the  existing  provisions  of  the  Code  of  Civil  Procedure 
a  promissory  note  is  made  proi)erty  capable  of  manual 
delivery,  which  may  be  levied  upon  so  as  to  effect  a 
lien  upon  the  debt  which  it  represents  l)y  taking  it 
into  the  officer's  actual  custody,  and  that  he  may  pro- 
tect and  defend  that  levy  and  lien  by  assailing  as  fraud- 
ulent a  previous  assignment  or  iran.^fer  to  a  third 
party. 

Under  the  earlier  provisions  of  the  Code  a  levy 
upon  property  capable  of  manual  delivery,  executeil 
1)3'  taking  it  into  tJjH  actual  p()sse>.sion  of  tlin  odicer, 
invested  him  with  right,  in  defense  of  his  levy,  toassail 
as  fratjdulent  atid  void  against  cieditors,  a  previous 
assignment  or  transfer  which  threatened,  by  its  jirior- 
ity,  the  security  of  the  lien  obtained  (Kincliey  o.  Strik- 
er, 28  ;V.  r.  45).  But  this  court  also  held,  as  to  the 
levy  permitted  to  be  made  upon  choses  in  aciiou,  that 


CIVIL    PROCEDURE    REPORTS.  167 


Antliony  v.  Wood. 


the  attacliment  reached  and  became  a  lien  upon  only 
such  debts  as  at  the  time  belonged  to  the  debtor  by  a 
legal  title,  and  for  the  recovery  of  which  he  coukl 
maintain  an  action  at  law,  and,  as  a  consequence,  where 
before  levy  of  the  attachment  hn  had  [)arred  with  the 
legal  title,  even  if  with  intent  to  defiaud  his  creditors, 
there  lemained  in  liinj,  for  their  beneiit,  only  an  equity 
which  the  attachment  could  not  reach,  and  so  the  sher- 
iff could  not  assail  the  transfer  as  fraudulent.  The 
doctrine  of  Thurber  n.  Bhinck  (oO  JS\  Y.  80),  went  to 
that  extent,  and  has  been  since  a ])]uoved  (Castle  .•». 
Lewis,  78  -N.  Y.  131  ;  Wait  on  Fraudulent  Convey- 
ances^ %  86).  Tiiese  authorities  establish  that  the 
[']  sheriff  in  the  case  before  us  could  not  assail  as 
fraudulent  the  transfer  of  the  note  and  its  collat- 
eral, made  prior  to  his  asserted  levy,  unless  their  doc- 
trine is  made  inap[)lienble  by  the  change  in  the  provis- 
ions of  the  Code  (§  649).  Where  the  property  sought 
to  be  attached  is  ''  capable  of  nianual  delivery,  includ- 
ing a  bond,  pi'omissoiy  note  or  other  instrument  for 
the  paj'ment  of  money,"  the  levy  is  now  to  be  made 
"  by  taking  the  same  into  theslieriffs  acrnnl  custody." 
This  provision  changed  merely  rlie  mode  of  mak- 
[^J  ing  the  levy,  but  in  no  i-espect  altered  the  irdierent 
character  of  the  ])roperty  sought  to  be  attached. 
If  the  note  or  bond  has  bi-en  tr-.msfei  red,  however 
fraudulently,  no  lien  by  attachment  is  possible,  and  it 
is  of  no  consequence  that  the  mode  of  executing  the 
process  has  been  changed.  "^Fhe  note  is  not  lui'ued 
intoachattel  by  the  new  provision.  It  remains  a  chose 
in  action,  and  when  the  legal  title  is  in  theattacli- 
[']  ment  debtor,  the  debt  may  be  seized  by  taking  the 
note  or  bond  which  is  its  evidenc-",  but  where  tlie 
legal  title  has  been  transferred  to  a  third  party  and  is 
not  in  the  debtor  to  be  attached,  the  i)Osses.sion  of  the 
note  by  the  officers  niuler  his  warrant  accomplishes 
nothing.     On  the  assumption,  therefore,  that  no  levy 


168  CIVIL    PROCEDURE    REPORTS. 

Anthony  v.  Wood. 


was  made  until  after  the  transfer  of  the  note,  the  at- 
tachment gave  the  oiBcer  no  right  to  assail  or  contest 

it. 
[*j  But  it  is  claimed  that  the  levy  made  by  taking 

the  note  into  the  officer's  custody  relates  back  to 
the  demand  made  by  him  upon  Chirk  Brooks,  who 
had  the  possession  of  the  paper,  and  which  occurred 
before  the  note  was  transferred.  The  warrant  wes 
issued  May  28,  1881  ;  on  June  2,  the  officer  called  upon 
Clark  Brooks,  who  was  the  agent  and  attorney  of  the 
defendant  and  had  the  note  in  his  custody  locked  up 
in  a  friend's  safe,  served  upon  him  a  certified  copy  of 
the  warrant  together  with  a  cojjy  of  the  affidavits,  and 
demanded  the  note  and  bond  and  mortgage  and  cer- 
tificate that  he  held  them  for  the  benefit  of  the  defend- 
ant. Brooks  refused.  Thereupon  he  was  ordered  to 
submit  to  an  examination,  which  took  place  on  June  7. 
The  assignment  of  the  note  and  mortgiige  was  dated 
the  day  before,  but  recorded  on  the  same  day.  In  July 
a  motion  to  compel  Brooks  to  deliver  up  the  note  was 
denied  at  special  term,  but  the  order  was  reversed  by 
the  general  term,  which  directed  liim  to  deliver  n[)  the 
securities  to  the  sheriff.     This  he  did  under  protest. 

It  was  said,  in  Bills  o.  Nat.  Park  Bank  (89  N. 
[*]      Y.  343),  to  have  been  the  law  that  a  debt  evidenced 

by  a  negotiable  security  could  be  attached  while 
in  the  hands  of  the  attachment  debtor  by  serving  the 
attachment  upon  the  maker  of  the  security;  but  the 
effect  of  sections  648  and  649  of  the  Code  of  Civil  Pio- 

cedure  was  not  considered.  Section  649  prfcrsciibes 
[']     how   the  levy  shall   be  made.     It  must    be   *'by 

taking  the  same  into  the  sheriff's  actual  custody," 
who  must  '' thereupon,  without  delay,  deliver  to  the 
pers(m  from  Avhose  possession  the  pioperty  is  taken, 
if  any,  a  copy  of  the  warrant  and  of  the  affidavits  upon 
which  it  was  granted."     No  other  mode  is  prescribed. 

Nothing  else  will  constitute  the  levy.     Until  the 


CIVIL    PROCEDURE    REPORTS.  169 

McGcan  v.  MacKellcr. 

[']  officer  lias  obtained  the  actual  custody,  he  has 
made  no  levy  and  can  make  none.  He  is  armed 
with  power  to  get  such  custody.  He  may  proceed  by 
action  or  special  proceedings  to  reach  that  result ;  but 
until  he  has  reached  it  he  has  made  no  levy  and  can 
make  none.  We  have  nothing  to  do  with  the  wisdom 
of  the  rule.  We  can  only  enforce  it  as  it  is  plainly 
written. 

It  follows  that  neither  before  nor  after  the  assign- 
ment did  the  sheriff  acquire  any  title  or  lien  upon  the 
note  or  bond  and  mortgage  ;  that  he  had  no  interest 
in  the  foreclosure  or  right  to  intervene,  and  that 
[*]  the  judgment  and  interlocutory  order  appealed 
from  should  each  be  reversed  and  judgment  of 
foreclosure  ordered  in  favor  of  the  plaintiff,  with-costs. 

All  concur,  except  Ruger,  Ch.  J.,  not  voting. 


McGEAN  V.  MacKELLAR. 

N.  Y.  Superior  Court,  Chambers,  August,  1884. 

§§  811,  1326  ;  Laws  1881,  ch.  486. 
Undertakings — approval  of. — Corporate  guaranty. 

Under  the  provisions  of  clmptcr  4SG,  Laws  1881,  authorizing  certain 
corporations  to  guarantee  bonds  and  undertakings  in  judicial  pro- 
ceedings, &c.,  the  undertaking  must  be  executed  by  tlie  party  ia. 
whose  behalf  it  is  offered,  and  it  is  not  enougli  that  such  corpora- 
tion executes  it.  Section  811  Code  Civ.  Pro.  does  not  apply  to 
cases  of  this  kind. 

Upon  justification  on  tlie  part  of  tlie  company  by  its  officers,  though 
it  may  api>ear  tiiat  the  company  is  in  the  condition  described  l)y 
section  3  of  the  act,  it  is  tlie  duty  of  the  judge  in  each  case,  to  ex- 
ercise hie  discretion  as  to  whether  the  actual  state  of  the  company's 


170  CIVIL    PROCEDURE    REPORTS. 

McGcan  v.  MacKcUar. 

business  justifies  the  approval  of  the  undertaking  ;  and  where  it 
appears  that  the  company  has  been  in  the  lialjit  of  guaranteeing 
bonds  and  undertakings,  issuing  policies  of  insurance,  etc.,  and  the 
officers  are  unable  to  give  satisfactory  information  as  to  the  aggre- 
gate amount  of  such  risks,  approval  of  the  undertaking  should  be 
withheld. 
{Decided  August  13,  1884.) 

■    Motion  for  approval  of  undertaking  on  appeal. 
The  facts  appear  in  the  opinion. 
John  Broolcs  Leaviit,  for  the  motion. 
George  M.  MacKellar,  opijosed. 

O'GoRMAN,  J.— The  plaintiff  desiring  to  api)eal  to 
the  court  of  appeals,  presents  for  my  approval  an 
undertaking  executed  by  a  corporation  claiming  au- 
thority under  chapter  480,  La\\s  of  1881,  to  guarantee 
the  fulfillment  of  the  conditions  of  undertakings  on 
appeal.  The  counsel  for  the  respondent  objects  to  the 
undertaking  of  this  coijjoration,  as  now  offered,  on  the 
grounds, 

First.  Because  it  is  not  given  by  the  appelhint. 

Second.  Because  the  examination  of  the  sf^Metary 
of  the  corporation  does  not  show  that  its  liabilities  do 
not  exceed  its  assets. 

The  first  of  these  objections  shonld,  in  my  opinion, 
be  sustained.  The  appellant  himself  should  execute 
the  undertaking  on  appeal,  and  his  undertaking  may 
according  to  the  provisions  of  section  1,  cimpfer  ASi), 
Laws  of  1881,  be  accepted  by  the  oflicer,  on  whom  is 
imposed  the  duty  of  approving  of  such  undertakings, 
"whenever  the  conditions  of  such  undet taking  are 
guaranteed  by  the  corporation." 

The  provisions  of  section  811  of  the  Code  of  Civil 
Procedure  do  not  seem  to  me  to  apply  to  cases  of  this 
kind. 


CIVIL    PROCEDURE    REPORTS.  171 

McGean  v.  MacKcllar. 

w 

The  second  and  more  important  objection  is,  whether 
on  the  evidence  before  me  in  this  case,  and  in  the 
exercise  of  the  judicial  discretion  which  in  each  case 
it  is  my  duty  to  exercise,  I  should  approve  of  the  un- 
dertaking offered,  as  a  sufficient  compliance  with  sec- 
tion 1326  of  the  Code  of  Civil  Procedure. 

By  section  1  of  the  act  of  1881  above  referred  to 
provision  is  made  for  justilication  on  the  part  of  the 
company,  through  its  officers,  as  required  by  law  of 
other  sureties.  It  is  provided  by  section  2  that  the 
guaranty  of  any  such  company  shall  not  be  accepted 
v^henever  its  liabilities  shall  exceed  its  assets,  as  ascer- 
tained in  the  manner  i)rovided  in  section  3  of  the  act. 
The  "manner  provided  "  in  sections  is  that  the  out- 
standing indebtedness  shall  be  charged  as  liabilities. 

Following  this  manner  of  ascertaining  the  liabil- 
ities of  the  company,  and  in  strict  and  technical  ac- 
cordance with  the  terms  of  said  sections  2  and  3,  the 
secretary  had  stated  figures  showing  a  surplus  of  assets- 
in  the  company  of  $105,122.29. 

It  is  in  evidence,  however,  that  this  company  has 
been  in  the  habit,  not  only  of  guaranteeing  bonds  and 
undertakings  on  appeal  and  the  fidelity  of  the  public 
and  private  affairs,  but  has  also  issued  policies  of 
insurance  against  accidents  endangering  human  life, 
against  breakages  of  plate  glass,  against  explosions 
of  boilers,  &c.  ;  and  how  many  of  such  policies  have 
been  issued  and  are  now  in  force,  and  what  is  the 
aggregace  amount  of  risks  thus  incurred  and  the 
amount  of  liabilities  therefor,  the  secretary  in  his 
examination  was  unable  to  state,  and  I  am  not  in- 
formed. 

In  the  case  of  Earle  v.  Earle,^"  decided  by  the  gen- 

*  EARLE,  Respondent,  v.  EARLE,  xYtpellant. 
N.  Y.  SurEiuou  Court,  General  Term,  Janctary,  1883. 
Decided  Feinuiry  5,  1883. 
Appeal  by  plaintifi  from  order  approving  undertaking  given  by 


172  CIVIL    PROCEDURE    REPORTS. 

McGcan  v.  ISIiicKcller. 

eral  term  of  this  court,  in  wliicli  case  the  questions 
now  before  me  were  considered,  the  court  suys,  "al- 
though file  company  may  bein  the  condition  described 

the  defendant  on  an  appeal  from  the  general  term  to  the  court  of 
appeals. 

The  undertaking  was  Bigned  by  tlie  dofeiiduut.  No  sureties  were 
given,  but  the  performance  of  the  undertaking  was  guaranteed  by  a 
corporation  called  the  Fidelity  ami  Ca^^ualty  Company. 

Carlisle  Norwood,  Jr.,  for  appellant. 

Jcfm  M.  Martin,  for  respondent. 

Moore,  Ijow  &  Sanfurd,  for  the  Fidelity  and  Casualty  Co. 

Sedgwick,  Cii.  J. — My  construction  of  tlie  act  is  as  follows  :  If  a 
bond  or  undertaking  is  proposed  which  is  to  l)e  secured  by  the  guar- 
antee of  tlie  company,  t\ui  party  oppo-seJ  may  require''  a  justification 
on  the  part  of  such  company.  .Inoiigh  its  officer^,  as  required  i)y  law  of 
other  sureties."  If  it  should  appear  on  such  juslificalion  that,  "its 
liabilities  exceed  its  assets,  as  ascertained  in  the  manner,  provided  in 
section  3  of  thisact."  the  act  forbids  the  acceptance  of  llie  guarantee. 
The  alternative  is  not  that  the  court  shall  approve  altsoiutely  and 
under  all  circumstan<es.  As  stated  in  the  first  section,  tii(!  court 
must  exercise  its  judicial  discretion  to  determin(f  whether  the  financial 
condition  of  tiie  company  would  justify  an  approval.  I  do  not  think 
that  the  act  implies  that  the  conqiany  mimt  jjossess  the  qualification 
required  of  sureties,  although  the  manner  of  justification  is  to  be  the 
same  as  where  sureties  justify.  The  nature  of  the  business  makes  it 
clear  that  the  legislature  knew  that  such  qualifications  could  not 
exist.  If  the  legislature  intended  that  the  company  should  sliow  sucl. 
qualifieation.s,  it  was  not  necessary  to  piovide  anything  ftirlher  on  the 
subject,  and  especially  to  prohibit  I  he  approval  of  the  undertaking  if 
the  company's  condition  did  not  reach  the  standard  specified  by  the 
third  section.  But  although  the  company  may  be  in  the  conditicm 
descrilK'd  by  section  3,  it  is  the  duty  of  the  judge  to  exercise  his  dis- 
cretion in  each  particular  case,  as  to  whether  tiie  actual  state  of  the 
company's  business  justifies  an  approval  of  the  undertaking.  • 

It  may  be  that  in  the  present  ease  the  court  did  not  exercise  the 
dj.scre^ ion  referred  to.  If  it  did  not,  the  general  term  should  make 
the  order,  that  would  be  called  for  Iiy  the  particular  circumstances. 
In  my  opinion,  the  circumstances  called  for  an  approval  of  the  under- 
taking, which  was  actually  approved  below.  There  should  be  no 
costs  on  the  appeal  to  either  party. 

Order  aflirmed,  without  costs. 

Tkuax  and  O'Gokman,  JJ.,  concurred. 


CIVIL    PROCEDURE    REPORTS.  173 

Ansonia  Brass,  &c.  Co.  v.  Conner. 

in  section  3,  it  is  the  duty  of  the  judge  in  each  partic- 
ular case  to  exercise  his  discretion  as  to  whether  the 
actual  state  of  the  company's  business  justifies  the 
approval  of  the  undertaking." 

Following  that  rule,  in  the  propriety  of  which  I 
concurred,  I  find  myself  in  this  particular  case  without 
sufficient  information  as  to  the  actual  state  of  the  com- 
pany's business,  and  therefore  unable  to  approve  of 
their  undertaking. 


THE  ANSONIA  BRASS   AND   COPPER  Co.,  Ap- 
pellant, V.  CONNER,  Sheriff,  etc., 
Respondent. 

N.  Y.  Common  Pleas,  General  Term,  March,  1884. 

§  1366. 


Sheriff^ — time  to  return  execution. — Extension  hj/  stay  of  proceedings. 
Admissions.  —  Evidence. 


On  the  mere  question  whether  the  time  in  which  tlie  sheriff  is  to 
return  an  execution,  is  extended  by  an  injunction  order  restraining 
him  from  interfering  witli  tiie  i^ropcrtj'  levied  on, — no  substantial 
harm  resulting  to  tlie  execuiion  creditor  therefrom, — courts  should 
hold  tliat  he  is  entitled  to  tlie  benefit  of  his  obedience  to  the  man- 
date of  the  courts,  notuiilistanding  any  doubts  as  to  its  jurisdic- 
tion or  i)owers  in  the  ])remises.  ['^j 

Accordingly,  held^  that  an  injunction  order  of  the  United  States  court 
in  bankruptcy,  staying  the  slicrifl's  proceedings,  operates  to  extend 
the  time  within  which  he  is  bound  to  return  the  execution,  by  as 
many  days  as  he  was  under  stay. 

An  admission  made  upon  which  a  new  trial  is  based  is  admissible  in 
evidence  against  a  party  making  it,  on  a  new  trial  of  the  action. ['] 

{Decided  May  33,  1884.) 


174  CI7IL    PROCEDURE    REPORTS. 

Ansonia  Brass,  &c.  Co.  v.  Conner. 

Appe:ilby  plaintiff  from  jtidgmetit  of  general  term 
of  city  court  alRrming  judgment  of  trial  term  dismiss- 
ing complaint. 

Action  for  failure  to  return  execution  against 
Charles  G.  Wilson's  property  after  sixty  days  from 
the  receipt  thereof.  Defenses,  among  others,  ih;it 
proceedings  of  defendant  were  stayed  by  injunction 
issued  by  the  United.  States  district  court,  as  foUovvs  ! 

"United  Statks  District  Couut  fou  the  Southehn 
District  ob'  New  York. 

"In  the  matter  of  Cluirles  G.  Wilson,  a  bankrupt 
— In  bankruptcy. 

"On  reading  and  filing  the  annexed  affidavit  of 
Charles  G.  Wilson,  who  htsabeen  declared  a  bankrupt, 
it  appearing  to  my  satisfaction  thnt  said  Chnrles  G. 
Wilson  lias  been  adjudicated  a  bnnkrupt,  a  mercliant 
residing  and  carrying  on  business  in  the  southern 
district  of  New  York  for  more  thnn  six  months,  and 
that  the  Ansonia  Brass  ;ind  Copper  Company  have,  by 
confession,  procured  a  judgmeiit  against  s;ii(l  biink- 
rnpt,  and  has  execution  thereon  against, and  have  levied 
npon  the  property  of  said  bankrupt,  and  thereb}'  are 
seeking  a  preference  over  tiie  other  creditors  of  .said 
bankrupt,  and  that  Le  Post  Hubbell,  Fied.  Iliibbell 
and  Dorcas  Stiles  are  seeking  to  procure  a  prel«'ience, 
&c. 

"Now,  it  is  ordered  that  said  Ansonia  Braf^s  and 
Copper  Company,  plaintifT  in  said  jndgTruwit.  and  .-aid 
L",  Post  HiibbMJh  FnMl.  Ilubbe!!  and  Dorcas  A.  Siih's, 
and  said  William  C.  ConiuM-,  "sheriff,  tliei!-  NPrvmits, 
agents,  atlo)-n»^ys  and  employees  ai'e,  and  eacli  of  iht'tn 
is,  hereby  restrained  and  enjoined  fiom  inteiTei-ing  in 
any  way  with  thesaid  ]>roperi3'of  said  Charles  G.  Wil- 
son, a  bankrupt,  not  exen>pt  by  act  of  Congress  ap- 
proved March  2, 1867,  and  the  acts  amending  the  same, 


CIVIL    PROCEDURE    REPORTS.  175 

Ansonia  Brass,  &c.  Co.  v.  Conner. 

from  the  operation  of  said  acts,  and  from  any  interfer- 
ence therewith  until  the  further  order  of  this  court. 

"Witness,  Honorable  Samuel  Blatchford,  Judge  of 
said  Court  of  the  United  States,  at  the  United  States 
court-room,  in  the  city  of  New  York  and  district  afore- 
said, this  2Hh  day  of  November,  1875. 

[L.  s.]  Geo.  F.  Betts,  Clerk." 

And  that  said  order  was  granted  upon  affidavit  of 
the  bankrupt,  the  execution  debtor,  and  was  not  vacat- 
ed until  December  14,  1875  ;  that  the  sale  of  property 
levied  upon  by  the  sheriff  Avas  postponed  until  said 
order  was  vacated,  and  thereafter,  on  December  17, 
the  property  was  sold,  &c. 

Marshall  P.  Stafford,  for  appellant. 

Yanderpoel,  Green  &  Cuming,  and  Henry  Tliomp' 
son,  for  respondent. 

J,  F.  Daly.  J. — When  this  case  was  last  before  us 
on  appeal  we  held  that  it  was  prematurely  brought  ; 
that  the  injunction  order  of  the  United  States  district 
court  stayed  the  sheriffs  proceedings,  and  operated  to 
extend  the  time  in  which  he  was  bound  to  make  return 
of  the  execution  by  as  many  days  as  he  was  under 
stay  (Ansonia  B.  &  C.  Co.  v.  Conner,  3  i\\  Y.  Civ.  Pro. 
88).  We  so  held  upon  an  admission  in  the  case  on  ap- 
peal, made  iiX-)on  the  trial  by  plaintiff,  that  by  order 
of  said  district  court,  the  sheriff  was  enjoined  and  re- 
strained "from  all  further  proceedings  under  the  said 
execution  until  the  further  order  of  the  court,  and  that 
said  order  remained  and  was  in  full  force  and  effect  un- 
til the  14th  day  of  December  1875."  On  the  new  trial 
that  admission  seems  to  have  been  withdrawn,  and  the 
order  of  the  district  court  was  put  in  evidence  ;  as  to 
which  order  i)laintiff  now  rais'^.is  the  question  whether 


176  CIVIL    PROCEDURE     REPORTS. 

Ai)sonia  Brass,  «Scc.  Co.  v.  Conner. 

its  legal  effect  was  to  stay  the  sheriff  ;md  his  proceed- 
ings.    Why  the  plaintiff  was  i)ermitre(l   to  withdraw 

his  original  admission  on  which  the  former  decision 
[']     of  this  court  was  based,  does  not  appear,  for  it  was 

available  to  defendant  upon  the  new  trial  (1  Phil- 
ip's JEv.  524  marg.  p.;  1  Green.  Eo.  §  186).  We  are 
now,  however,  called  upon  to  determine  the  effect  of 
the  order  as  read  in  evidence. 

The  district  court  had  power  to  make  orders  enjoin- 
ing any  disposition  of  the  bankrupt's  property,  in  the 
form  and  to  the  effect  of  the  order  proved  in  this  case. 
{U.  S.  Rev.  Stat.  6024.)  This  particular  onh^r  foibadn 
interference  with  the  identical  property  held  by  the 
sheriff.  Authorities  are  cited  to  show  that  the  court 
had  no  power  to  make  such  an  order  except  in  an 
action  instituted  for  the  ex[)ress  purpose  of  attacking 
the  judgment  (Smith  v.  Mason,  14Tr«ZZ.  419  ;  Marshall 
t).  Knox,  16  Id.  551),  and  that  a  transferee  of  the  bank- 
rupt so  enjoined  would  not  have  been  liable  for  the 
contempt  if  he  disobeyed  such  an  order  {In  re  Marter, 
8  N.  B.  li.  188).  In  the  case  of  Ansonia  B.  and  C.  Co. 
V.  Babbit  (8  Hun,  157),  it  was  held  by  the  supieme 
court  that  notwithstanding  an  order  of  the  district 
court,  enjoining  the  sheriff  from  further  proceedings, 
he  had  the  right  to  go  on  and  sell  the  j^roj^erty,  being 
accountable  only  for  the  surplus  to  the  assignee,  and 
was  not  justified  in  giving  up  the  property  to  thn 
United  States  marshal. 

In  the  same  case  in  the  court  of  appeals  (74  N.  r. 
395),  that  court  does  not  go  further  than  to  say  that 
the  order  "assuming  that  it  was  binding  on  thesher  ff 
who  had  no  notice  of  tlie  application  for  the  order  and 
was  not  heard  in  respect  to  it,  did  not  assume  to  dis- 
turb his  possession,"  and  that  it  was  hisduty  to  retain 
the  possession  and  sell  tlie  property  to  satisfy  the  exe- 
cution and  to  take  all  reasonable  means  to  protect  his 
levy.     It  is  not  held  that  such  an  order  would  not  ex- 


CIVIL    PROCEDURE    REPORTS.  177 

Ansonia  Bniss.  &c.  Co.  v.  Conner.- 

cuse  the  sheriff  so  far  us  making  liis  return  wirliin  the 
statutory  time  is  concerned,  it'  lie  obeyed  and  respected 
it  until  it  was  i-egularl}'  set  aside,  a  course  of  proceed- 
ing whicli  the  decent  administration  of  justice  required 
of  the  officer.  That  is  the  only  question  we  have  to 
denl  with  here,  and  I  am  inclined  to  adopt  the 
[']  views  expressed  in  the  city  court  on  this  point  by 
Chief  Justice  McAdam  at  general  term,  and  by 
Justice  Hall  at  trial  term,  that  on  the  mere  question 
whether  the  time  in  which  the  officer  was  to  make  his 
return  was  extended  by  the  injunction  order,  no  sub- 
stantial harm  resulting  therefrom  to  the  execution 
creditor,  courts  should  hold  that  he  was  entitled  to 
the  benefit  of  his  obedience  to  the  mandate  of  the 
court,  notwitiistanding  any  doubts  as  to  its  jurisdic- 
tion or  powers  in  the  premises. 

The  judgment  should  be  affiimed,  with  costs. 

Should  the  appellant  desire  to  have  the  decision  of 
the  court  of  appeals  on  the  questions  of  law  not  defin- 
itely settled  by  its  decisions — 

1.  Whether  a  stay  of  the  sheriff's  proceedings 
operates  to  extend  the  statutory  time  for  making  re- 
turn on  the  execution  ;  and, 

2.  Whether  the  order  in  question,  having  been 
obeyed  by  the  shei'iff  until  regularl 3^  vacated,  operated 
as  such  a  stay. 

1  am  willing  to  mrdce  an  order  authorizing  an 
appeal  for  that  purpose. 

Larre:>[oue  and  Van  Hoesen,  JJ.,  concurred. 
Vol.  VI  -18 


178  CIVIL     PROCEDURE     REPORTS. 


Apsley  V.  Wood. 


APSLEY  V.  WOOD. 

Supreme  Couht,  Second  Dkpahtmknt,  General 
Term,  September,  1884. 

§§  77G,  827. 

"Renewal  of  motion.  —  What  is  new  proof. — Rfport  of  refene  to  take  proof 
on  motion.  —  M'hen  should  stand. 

Where  a  motion  to  set  nside  a  iiulgmt'iit  taken  by  default,  on  the 
ground  that  ihe  summons  had  never  been  Et;rvcd,  was  d<'nit'd.  with 
leave  to  renew  upon  new  pa|)er.«,  mid  the  defendant  thereafter  re- 
newed tlie  motion  upou  the  same  papers,  and  .additional  nttidavits, 
impeaching  the  character  of  the  ph-iintiff  and  averring  that;  he  was 
a  person  likely  to  procure  a  false  affidavit  of  service;  tliat  he  lia»l  a 
bad  cliaracter,  had  been  arrested  for  crime  and  had  been  found 
guilty  of  procuring  a  deed  l)y  fraud, — Ile.lil,  that  tlie  plainiilPs 
objection  and  that  no  new  facts  were  presented  on  tlie  renewal  m<)- 
tion  was  untenable  tliat  the  additional  affidavit  did  fiirnisli  new 
facts  of  weiglit. 

Althougli  the  report  of  a  referee  appointed  to  take  proof  on  a  motion 
is  no't  subject  to  as  strict  a  rule  in  respect  to  the  result  upon  the 
disputed  question  of  fact  as  upon  the  issues  in  an  action  tried 
before  him,  yet  the  report  siiouid  stand  even  if  only  fairly  sup- 
ported by  the  evidence. 

{Decided  September,  1884.) 

Appeal  by  defendnnt  from  order  dated  Februnry 
28,  1883,  denying  his  motion  to  set  nside  a  judgment 
taken  against  iiim  by  default  ;  also  a[ipKil  l>y  plaintid 
from  an  order  setting  aside  said  judgment. 

The  judgment  in  question  was  for  S3,101.44and  was 
entered  on  defendant's  failure  to  appear  or  answer 
on  December  14,  1883.  It  is  asserted  by  plaintilf  that 
the  summons  was  served  by  one  Samuel  B.  Rogers,  a 
real  estate  broker,  doing  business  in  the  city  of  New 


CIVIL    PP.OCEDURE    REPORTS.  179 

Apsley  V.  Wood. 

Yoik.  The  defendant  denied  that  he  had  ever  been 
served  with  a  summons  in  the  action  and  claimed  that 
the  affidavit  of  Rogers  in  that  behalf  was  wholly  false  ; 
and  made  a  motion  to  set  aside  the  judgment  for  that 
reason.  The  affidavits  were  contiicting  and  the  court 
ordered  a  reference  to  take  proof.  The  referee  re- 
ported the  eviden-ce  with  his  opinion  that  there  had 
been  no  service  of  the  summons  on  the  defendant  in 
the  action.  A  motion  to  confirm  the  referee's  report 
and  to  set  aside  the  judgment  was  made  at  special 
term,  based  on  the  affidavits  and  the  evidence  taken, 
and  on  said  report.  Said  motion  was  denied  by  the 
court,  with  $10  costs  and  all  disbursements,  amounting 
together  to  $75.  The  order  denying  said  motion  con- 
tained the  provision  that  "the  defendant  be  allowed 
to  apply  to  the  court  npon  such  other  papers  and 
affidavits,  as  he  may  be  advised,  to  set  aside  the  said 
Judgment  and-  to  defend  the  action." 

The  defendant  without  paying  or  tendering  the 
costs,  immediately  renewed  the  motion  upon  tlie  same 
pax)ers  which  were  the  basis  of  the  former  motion,  and 
upon  the  additional  affidavit  of  tne  defendant  in  which 
he  charged  plaintiff  with  various  crimes  and  offHuses  : 
in  substance  that,  "  plaintiff  had  been  arrested  by 
various  persons  in  Lockhaven,  Penn.,  and  in  Boston, 
Mass.  ;  that  he  had  been  arrested  for  larceny,  false 
pretenses,  embezzlement,  forgery,  &c." 

The  motion  was  granted  and  the  defendant  allowed 
to  serve  an  answer.  From  the  order  thereupon  entered 
the  plaintiif  appealed,  whereupon  the  defendant  ap- 
pealed from  the  order  denying  his  original  motion. 

Other  facts  are  stated  in  the  opinion. 

Anson  B.  3foore  and  Andrew  J.  Moore,  for  the 
plaintiff. 

The  statements  in  the  moving  affidavit  of  the  de- 
'  fendant  in  regard  to  plaintiff's  character,  were  clearly 


180  CIVIL    PROCEDURE    REPORTS. 

Apsley  T.  Wood. 

incompetent,  immaterial  and  inadmissible  for  any  pur- 
pose ;  they  were  scnndalous  in  the  extreme,  and 
siiould  have  been  stricken  out  on  motion  then  and 
there  made. 

The  plaintiff  was  an  attorney  and  counselor  iit  law, 
an  officer  of  the  court,  and  was  entitled  to  iis  j protec- 
tion. The  statements  therein  were  interiiosed  for  the 
purpose  of  disgracing  and  degrading  tlie  plaintiff,  ai}d 
to  prejudice  the  court  against  him  and  his  rigljts,  and 
were  calculated  to  have  that  effect,  and  this  court  can- 
not see  that  it  did  not  have  the  effect  to  induce  the 
court  below  to  set  aside  the  judgment.  The  plaintiff 
had  not  been  sworn  as  a  witness,  nor  had  he  made  an 
affidavit  in  opposition  to  the  motion,  hence  the  im- 
peaching affidavit  was  incomi)etent  evidence  for  any 
purpose. 

Evidence  that  a  witness  has  been  indicted  for  per- 
jury and  for  forgery  is  inadmissible  to  impeach  his 
credibility.  Jackson  v.  Osborn,  2  Wend.  555 ;  People 
V.  Gay,  7  N.  Y.  378 ;  59  Barh.  619  ;  49  Id.  34'2 ;  Peo- 
ple v.  Herrick,  VS  Johns.  82;  iGreenlecifon  Ecidoice^ 
457-463 ;  15  Hun,  269 ;  Newcomb  v..  Giiswold,  24  K. 
Y.  298,  Opinion  by  Allen,  J.,  299;  3  WaWsPr.  142; 
Lee  tj.  Chadsey,  3  if(??/e5,  225  ;  Warrell  6'.  Par m ley,  1 
N.  r.  619;  People  t).  Wiley,  3  /////,  193;  Conw^ay  v. 
Conway,  6  iV^.  Y.  97  ;  La  Beau  c.  People,  0  Park.  Cri)n. 
JR.  371  ;  Varona  v.  Soccaras,  8  Abh.  Pr.  302  ;  Giisron 
«.  Smith,  1  Daly.  380  ;  Real  v.  People,  42  N.  Y.  270  ; 
People  n.  Crapo,  76  Jd.  288;  Jackson  v.  Lewis,  13 
Johns.  504 

The  motion  to  set  aside  the  judgmentand  to  defend 
the  action  should  have  been  denied  and  the  order 
granled  in  i)ursuatice  thereof,  sliould  be  reversed. 

This  is  a  renewal  motion  u[)()n  the  same  state  of 
facts.  It  is  the  settled  practice  in  this  stale  that  where 
a  motion  has  been  once  heard,  considered  and  denied, 
it  cannot  be  renewed  on  the  same  state  of  facts.    Mills 


CIVIL    PROCEDURE    REPORTS.  181 

Apsley  V.  Wood. 

V.  Thursby,  11  IIou).  Pr.  114  ;  People  d.  Mercein,  3 
B/ll,  416.  And  see  Gatherhead  v.  Bromley,  7  T.  R. 
455;  Simpson  n.  Hart,  14l  Johns.  63;  Schiiman  v. 
Weatherhead,  1  East,  537;  Allen  v.  Gibbs,  12  Wend. 
202;  Dollfus  v.  Frosch,  5  Hill,  493,  note  "A"  to 
above  case;  Hoffman  v.  Livingston,  1  Johns.  Ch.  211. 

The  defendant  was  bound  to  present  in  his  first 
motion  all  neci-ssary  facts  in  his  possession  or  within 
his  knowledge  to  entitle  him  to  any  relief  that,  he 
could  or  would  be  entitled  'oiinderany  cin-umstances. 

No  new  slate  of  facts  being  [)resented  in  the  second 
motion,  not  known  to  tiie  deleiidant  and  duly  pre- 
sented in  the  first,  the  second  motion  was  properly 
met  by  the  established  practice  that,  "  a  party  com- 
plaining of  any  proceeding  in  a  cause,  must  embody 
all  objections  then  existing  in  one  motion  ;  he  cannot 
make  a  separate  motion  for  each  objection."  Patter- 
son V.  Bacon,  21  How.  Pr.  478 ;  Desmond  v.  Wolf,  1 
Code.  R.  49;  S.  C,  12  Abb.  Pr.  142;  Schanmer  v.  In- 
gerstein,  19  Hoio.  Pr.  412-413;  Simpson  v.  Hart,  19 
Johns.  72;  Smith  -o.  Spaulding,  3  Robt.  615. 

A  morion  can  only  be  renewed  upon  neio  grounds 
and  not  upon  mere  addiiional  or  cumulative  papers. 
Bascom  v.  Feazler,  2  How.  Pr.  16  ;  Ray  v.  Conner,  3 
I^dw.  Ch.  479. 

Leave  to  renew  a  motion  will  not  be  granted  to 
enable  a  party  to  present  facts,  which  were  known  to 
him  at  the  time  of  his  original  motion.  Lovelli'.  Mar- 
tin, 12  Abb.  Pr.  178. 

A  motion  once  denied  cannot  be  renewed  as  a  mat- 
ter of  right,  except  upon  a  different  state  of  facts 
arising  subsequent  to  the  decision  of  the  former  mo- 
tion. Bank  of  Havana  v.  Moore,  5  Hun,  624;  Bolls  n. 
Duff,  66  Barb.  567;  38  How.  Pr.  492  ;  7  Abb.  N.  S. 
385  ;  52  Barb.  637  ;  6  Abb.  N.  S.  442 ;  Riggs  c.  Rus- 
sell, 74  N.  Y.  370. 


182  CIVn.    PROCEDURE    REPORTS. 

Apsley  V.  Wood, 

E.  D.  Ch/lds  and  C.  M.  Stafford,  for  defendant. 

The  granting  of  the  order  appealed  from  by  the 
plaintiff,  lests  in  the  legal  discretion  of  the  judge  be- 
fore wJiom  the  motion  was  made  and  decided,  and 
being  a  discretionary  order  it  is  not  appealable.  Mar- 
tin V.  Gould,  41  Super.  CL  {J.  d;  S)  544  ;  Mead  v.  Mead, 
2  E.  J).  Smith,  223;  Ciuirchill  v.  Mallison,  2  Hilt. 
70 ;  Bolton  v.  De|)eyster,  3  Code  R.  141  ;  Carpenter  v. 
Carpenter,  4  How.  Pr.  139. 

Barnard,  P.  J. — This  appeal  is  bnsed  npon  an 
apparently  contradictory  decision  at  special  terinupoD 
the  same  substantial  facts.  Upon  December  14,  188*2, 
the  plaintiff  entered  np  a  jndgnient  against  the  de- 
fendant for  $3,1(31.44  by  default.  The  roll  shows  that 
the  summons  was  served  by  one  Rogers,  The  defend- 
ant denied  that  he  had  been  so  served,  and  made  a 
motion  to  set  aside  the  judgn)ent  for  that  reason.  The 
affidavits  were  conflicting  and  the  court  ordered  a  jvf- 
erence  to  take  proof.  The  referee  reported  that  there 
had  been  no  service  of  the  summons.  The  special  term, 
upon  the  report  being  returned,  denied  the  motion 
with  a  leave  to  renew.  The  motion  was  renewed  upon 
an  affidavit  which  impeached  the  plaintiff's  character, 
and  npon  the  same  papers  which  had  been  the  basis  of 
the  former  motion.  The  court  set  aside  the  judgnieiil 
60  far  as  to  permit  an  answer  to  be  served.  The  de- 
fendant did  answer  and  the  i>laintiff  appealed  ;  the 
defendant  (hen  appealed  from  the  order  refusing  to^et 
aside  the  judgment.  The  plaintiff  moves  to  dismiss 
that  appeal  because  the  defendant  renewed  I  he  moiion 
and  took  a  benefit  under  the  subsequent  order.  ar;d  is 
therefore  ))ouiid  to  siibmit  to  the  former  order.  Uporj 
The  aj)peal  from  the  second  order  b}'  plaintiff  he 
claimed  to  reverse  that,  because  the  rehearing  was  im- 
proper U[)on  the  same  fact.  If  the  second  order  is 
reversed  because  it  was  improper  to  have  the  motion 


civil.    PROCEDURE    REPORTS.  183 

Apsley  V.  Weed. 

a  second  time   lieaid,  and  the  ap[)eal  from   the  first 
order  by  the  defendant,  is  dismissed,  because  he  is 
estopped  by  the  second  order,  ihe  defendant  will  be 
wirhoiit  the  jjower  to  present  his  case  upon  apjieal. 
AVe  think  the  chiirn  made  by  plaintiff  as  to  the  illegal- 
ity of  the  renewed  motion   untenable.     The  right  to 
renew   was   reserved   by   the  order  denying  the  first 
motion.      The   additional   affidavit   of  defendant  did 
fu:nisli  new  facts  of  weight  upon  tiie  lenewed  motion. 
Tile  plaintiff  was  stated  to  be  a  person  likely  to  pro- 
cure a  false  affidavit  of  service.     That  he  had  a  bad 
character;  had  been  arrested  for  crime,  and  had  been 
found  guilty  of  procuring  a  deed  by   fraud.     The  re- 
port of  the  referee  is  abundantly  sustained  by  the  evi- 
dence.   The  parties  to  the  occurrence  disagree.  Rogers 
says  he  served  the  paper.     Wood  denies  the  service. 
The  surrounding  facts  are  in  favor  of  defendant's  tes- 
timony.    Rogers  was  a  real  estate  broker  and  not  a 
person  who  was  accustomed  to  serve  papers.   The  claim 
is  a  large  one  and  the  plaintiff  delayed   some  three 
months  after  he  could  have  entered  judgmeut.    Rogers 
says  he  served  two  papers  at  the  same  time  ;   one  was 
the  summons  in  this  case,  and  the  other  a  summons 
and  complaint  in   the  Kings  count}*  court.     Tiie   de- 
fendant employed  an  attorney  in  due  time  to  defend 
in  the  county  court  and  although  he  denies  any  debt 
in  this  case,  and  althougli  he  had  a  store  well  stocked, 
in  Brooklyn,  in    his  pos.session,    he  waited  until   the 
sheriff'  came  with  the  execution    before  making  any 
defense.     Although  the  report  of  the  refei'ee  is    not 
subject  to  as  strict  a  rule  in  lespect  to  the  result  upon 
the  disputed  cxuestion  of  fact  as  u[)oi*  issues  fried,  yet 
The  re[)ort  should  stand,  even  if  only  fairly  supported 
by  the  evidence.     A  referee  has  the  benefit  of  the  aid 
derived  from  the  inspection  of   the   witnesses  and  of 
their  manner  upon  the  stand  as  well  as  upon  the  trials 
oi  issues  in  actions.     Assunung  that  the  defendant  had 


184  CIVIL    PROCEDURE    REPORTS. 

Stern  v.  Moss. 

failed  to  remember  the  service,  he  was  still  entitled  to 
answer  if  he  had  a  defense,,  but  we  think  the  summons 
was  never  served,  from  the  evidence  and  report  of  the 
referee. 

The  ord^r  should  be  modified  by  striking  out  the 
consent  upon  plaintiff's  part  to  refer.  It  should  be  left 
optional  with  him  to  refer  or  not,  as  thus  modified  this 
order  appealed  from  is  affirmed,  with  costs  and  dis- 
bursements. 

The  appeal  taken  by  defendant  from  the  denial  of 
the  motion  to  set  aside  the  judgment,  should  be  dis- 
missed with  costs. 

Pkatt  and  Dykman,  JJ.,  concurred. 


STERN,  Appellant,  v.  MOSS,  Rk;spondent. 

N.  Y.  Common  Pleas,  General  Term,  March,  1884. 

§§  549,  550,  2894-2904,  3200-3211. 

Execttion  against  person  in  district  courts. 

Where  an  action  is  brought  in  the  district  court  of  New  York  city, 
upon  contract,  and  an  order  of  arrest  is  granted  upon  affidavits 
showing  facts  extrinsic  to  the  cause  of  action,  which  order  is  rot 
vacated,  to  entitle  plaintifl  to  judgment  and  an  execution  against 
the  person,  he  need  only  prove  his  contract  claim. 

{Decided  June  30,  1884.) 

Appeal  by  plaintiff  from  judgment  of  district  court 
of  New  York  city. 

A  summons  and  order  of  arrest  in  this  action  were 
served  upon  the  defendant,  and  on  August  3,  1883,  the 


CIVIL    PROCEDURE    REPOHTS.  18? 

Stern  v.  Moss. 

parties  api)eared  in  court  and  issne  was  joined  between 
them.  The  pleadings  were  oral.  The  complaint  was 
for  goods  sold  and  delivered,  and  the  answer  was  a 
general  denial.  A  motion  was  made  to  vacate  the  order 
of  arrest  which  was  granted  upon  extrinsic  facts  set 
forth  in  affidavits  showing  that  the  goods  were  ob- 
tained upon  false  and  fraudulent  representations. 
Counter  affidavits  were  mnde  in  opposition  thereto. 
On  August  4,  1883,  the  motion  to  vacate  the  order  was 
denied,  and  the  trial  of  the  action  was  adjourned  to 
August  8,  1883,  when  it  was  tried  before  Justice 
Angel  (sitting  in  place  of  Justice  McGown).  who,  on 
August  15,  1883,  rendered  judgment  for  the  defendant, 
dismissing  the  action,  with  costs. 

Upon  the  trial  the  plaintiff  only  proved  the  sale 
and  delivery  of  the  goods  in  question  and  non-pay- 
ment therefor.  The  defendant  offered  no  proof,  but 
moved  to  vacate  the  order  of  arrest  for  want  of  proof 
to  sustain  it.  The  plaintiff  insisted  that  upon  the  evi- 
dence, as  it  stood,  he  was  entitled  to  a  money  judg- 
ment for  the  value  of  the  goods,  together  with  the 
direction  therein,  the  words,  "  defendant  liable  to  exe- 
cution against  his  person." 

From  the  refusal  of  the  justice  to  insert  such  direc- 
tion and  from  the  judgment  rendered  this  appeal  is 
taken. 

Louis  H.  Mayer ^  for  appellant. 

Jacob  A.  Canton,  for  respondent. 

Per  Curiam. — The  justice  in  a  well  considered 
opinion,  refers  to  Coles  v.  Ilannigan  (8  Daly,  43)  as 
authority  for  his  decision.  In  that  case  the  action  was 
commenced  by  a  warrant  of  arrest  in  the  first  instance, 
pursuant  to  subdivision  3,  section  16,  chapter  346  of 
the  Laws  of  1857.    The  jDrocess  used  determined  tke 


186  CIVIL    PROCEDURE     REPORTS. 

Stern  v.  Moss. 

character  of  the  action,  and  as  the  fraud  was  not  de- 
nied, nor  any  motion  made  to  vacate  the  arrest,  it  was 
held  the  defendant  was  liable  to  arrest  upon  execution 
upon  proof  only  of  his  indebtedness.  But  section  10  of 
theact  of  18o7,allowing  the  commencement  of  an  action 
by  a  summons,  warrant  or  attachtnenr,  was  repealed 
by  section  3209  of  the  Code  of  Civil  Procedure,  which 
provides  that  an  action  bronglit  in  the  district  courts 
must  be  commenced  by  voluntary  appearance  of  the 
parties  or  by  the  service  of  a  summons. 

By  section  8210  of  the  Code,  article  3,  chapter  19, 
is  made  applicable  to  the  district  courts.  This  article 
includes  sections  2894  to  2904,  subject  to  the  qualifica- 
tions mentioned  in  section  3211.  This  latter  section 
provides  that  existing  statutes  in  relation  to  the  dis- 
trict courts,  which  are  not  rej^ealed,  shall  still  be  ap- 
plicable as  to  the  manner  of  applying  for,  granting 
and  exex;uting  an  order  of  arrest,  &c. 

As  an  action  in  these  courts  must  now  be  com- 
menced by  a  summons,  it  would  ai)pear  that  an  order 
of  arrest  therein  is  to  be  regarded  as  a  jirovisional 
remedy  somewhat  analogous  to  the  practice  under  sec- 
tion 179  of  the  old  Code  of  Procedure,  where  the  action 
on  contract  might  be  i)rosecuted  irrespective  of  the 
right  to  arrest  upon  extrinsic  facts. 

Sections  549  and  550  have  no  application  to  arrests 
in  the  district  courts  of  the  city  of  New  York,  and 
subdivision  4  of  section  549  is  the  only  statute  that 
requires  that  fraud  in  contracting  the  debt  shall  be 
proved  upon  the  trial,  if  the  plaintiff  suing  to  recover 
money  due  upon  a  contract  seeks  the  arre.st  of  the  de- 
fendant. Before  the  enactment  of  subdivisi«)n  4  of 
section  549,  it  was  never  necessary  that  the  ])laintiff 
should  allege  in  his  complaint  and  prove  at  the  trial 
that  the  debt  that  he  sued  to  recover  was  fraudulently 
contracted.  His  cause  of  action  was  an  ordinary''  money 
demand,  and  the  fraud  used  by  the  defendant  in  in- 


CIVIL    PROCEDURE    REPORTS.  187 

i  Stern  v.  Moss. 

curring  the  debt  was  a  circumstance  extrinsic  to  the 
cause  of  action  to  be  proved  by  affidavit  if  the  plaint- 
iff attempted  to  arrest  the  defendant.  Upon  his  arrest 
the  defendant  was  at  liberty  to  move  upon  affidavits 
to  vacate  the  order  of  arrest,  and  the  question  of  the 
defendant's  liability  to  arrest  was  always  decided 
upon  affidavits  where  the  ground  of  arrest  was  extrinsic 
to  the  cause  of  action.  Thongli  the  subdivision  we 
have  mentioned  has  introduced  a  new  rule  in  courts  of 
record,  the  practice  in  the  district  courts  has  not,  as 
we  have  said,  been  affected  by  it.  Section  1304  of  the 
consolidation  act  prescribes  the  case  in  which  an  arrest 
may  be  had  in  an  action  in  the  district  court.  When 
aiTested,  the  defendant  may  move  upon  affidavits  to 
vacate  the  order  of  arrest.  The  very  point  was  de- 
cided in  Johnson  v.  Florence  (32  Now.  Pr.  230). 
Where  the  original  process  was  a  warrant,  the  setiing 
aside  of  the  warrant  put  an  end  to  the  action  ;  but  the 
order  of  arrest  obtained  under  1304  of  the  consolida- 
tion act  is  merely  a  provisional  remedy  which  may  be 
vacated  without  affecting  the  summons  or  the  right  of 
the  plaintiff  to  proceed  with  the  action,  in  order  that 
he  may  recover  judgment  for  his  demand. 

Where  the  order  of  arrest  is  sustained,  the  plaintiff 
is  entitled  to  an  entry  in  the  judgment,  if  he  recover 
one,  that  the  defendant  is  subject  to  arrest  and  impris- 
onment thereon  (§  1386  of  the  consolidation  act;  Coles 
X.  Hannigan,  8  Daly,  43).  The  execution  is  then  to 
be  issued  in  accordance  with  the  provisions  of  section 
1399. 

The  judgment  appealed  from  and  the  order  vacat- 
ing the  order  of  arrest  should  therefore  be  revei*sed 
and  a  new  trial  ordered,  with  costs  to  the  appellant  to 
abide  the  event. 

In  order  to  prevent  misconception,  we  will  say  that 
section  3018  is  not  now  before  us,  but  we  do  not  think 


1R8  CIVIL    PROCEDURE    REPORTS. 

Siiiffiu  V.  Peck. 

it  has  ;iny  bearing  upon  the  question   that    we   have 
passed  npon  on  this  aiDpeal. 

Lauukmore,  p.  J.,  J.F.Daly  and  Van  Hoksen, 
JJ.,  sitting. 


SNIFFEJS",  Appellant,  o.  PECK,  Respondent. 

City  C^/urt  of  New  Yoiik,  General  Term,  Septeii- 
BEP.,  1884. 

§§531,781,783. 

Timfi  V  '•nswti. — Stay  <■/ proceeding  not  extension  of. — Specifying  irreg- 
uUirilies  in  order  to  show  aiuKe. 

W/^.re  ft  defendrttit,  after  Ins  time  to  answer  had  expired,  obtained 
an  order  tliat  the  phiintifT  serve  a  bill  of  purticuhirs  of  liis  elaim,  or 
show  a  cause  on  a  day  tiicrein  named,  why  he  siiouid  ii<>i  hu  re- 
quired to  do  so,  and  staying  his  proceedings  until  the  fun  her 
order  of  the  court,  and  the  plaintiff  thereupon  served  a  bill  of  par- 
ticulars; obtained  an  ex  parte  order  vacatinj;  the  stny  and  entered 
judgment, — Ueld,  that  tiie  phiintifT  had  a  legal  right  so  to  do;  that 
the  stay  of  proceedings  di<l  not  operate  as  an  extension  of  time  to 

answer. 
An  order  granting  a  motion   to  vacate  and   set   aside  a  judgment  is 

objectionable  when  no  specific  grounds  of  irregularity  were  speci- 
fied in  the  order  to  show  cause  on  which  it  was  made. 
{Decided  October  24,  1884.) 

Appeal  from  an  order  vacating  and  setting  aside,  as 
irregular,  the  judgment  entered  herein. 

This  action  was  commenced  May  17,  1884.  by  tlie 
service  of  the  summons  and  notice  upon  the  defendant 
to  recover  $22."). 61  on  an  account  stated. 

The  defendant  appeared  in  person  May  li),  1884,  and 


CIVIL    PROCEDURE    REPORTS.  189 

Sniffin  V.  Peck. 

demanded  service  of  the  complaint— service  whereof 
was  made  upon  him  on  May  22,  1884. 

On  May  31,  18S4,  and  after  his  time  to  answer  had 
expired,  the  defendant  obtained  from  Mr.  Justice 
Nehubas  an  alternative  order  requiring  plaintiff  to 
serve  "a  bill  of  the  particulars  of  the  account,  in  respect 
whereof  this  action  is  brought"  or  show  cause ;  this 
order  also  contained  a  stay  of  plaintiff's  proceedings 
"until  the  further  order  of  this  court,"  but  it  did 
not  contain  any  extension  of  the  defendant's  time  to 
answer,  which  had  expired  three  days  previous. 

June  4, 1884,  the  plaintiff  served  upon  the  defend- 
ant's attorney  a  copy  of  the  account  stated  alleged  in 
the  complaint,  and  thereupon  an  order  was  made  and 
entered  by  Mr.  Justice  Hyatt  vacating  the  stay  con- 
tained in  the  order  of  May  31,  1884,  and  thereafter  on 
the  same  day  judgment  for  want  of  an  answer  was 
entered  against  the  defendant  for  $257.74. 

The  defendant  thereupon  moved  to  vacate  said 
judgment  as  irregular.  On  the  return  of  the  motion 
the  plaintiff'  interposed  the  preliminary  objection  that 
the  motion  papers  did  not  disclose  what  the  irregularity 
consisted  of;  this  objection  was  overruled,  and  the 
motion  was  granted  vacating  the  judgment  as  irregular, 
•and  from  the  order  entered  thereon  this  appeal  was 
taken. 

Russell  Benedict,  for  appellant. 

Where  a  motion  is  based  upon  an  irregularity  it 
must  be  specilied  in  the  notice  or  order  to  show  cause. 
People  V.  Kenney,  2  Ilan,  84G  ;  Lewis  t.  Graham, 
10  Abb.  Ft.  12G  :  Barker  v.  Cook,  40  Barb.  254.  Even 
though  the  affidavit  disclosed  an  irregularity  in  the 
judgment — which  it  does  not — this  would  be  insufllcent 
unless  it  was  also  set  out  in  the  order  to  show  cause. 
Montralt  v.  Hutchins,  49  IIoio.  Pr.  105.  The  defend- 
ant's  time  to  answer  expired  on  May  28,  1884 ;   the 


190  CIVIL    PROCEDURE    REPORTS. 

Sniffin  V.  Peck. 

ex  parte  order  of  May  31,  did  not  revive,  extend  or 
enlarge  sncli  time.  Tlie  only  metliod  by  wjiicli  a  defend- 
ant's time  to  plead  can  be  extended  beyond  the  sfatu- 
tory  limit  before  it  has  expired  is  by  consent  or  by  an 
order  of  the  court  or  a  judge  thei-eof  made  upon  pr<)i)er 
affidavit  containing  the  matters  required  by  the  Code 
and  genera]  rules  of  practice  including  an  oath  to  the 
merits.  AVhen  the  time  has  already  expired,  the  only 
remedy  of  the  defendant  is  to  move  for  leave  to  come 
in  and  defend  ;  this  application  nnist  be  made  to  the 
court.     Code  Civ.  Proc.  §§  781,  783. 

The  order  of  May  31,  1884,  made  by  Mr.  Justice 
Nehrbas  contained  a  stay  of  plaintiff's  proceedings 
"until  the  further  order  of  this  court."  This  did  not 
operate  to  enlarge  or  revive  the  defendant's  time  to 
plead ;  its  only  office  was  preventive  or  injunctive  of 
plaintiff's  proceedings,  and  therefore,  when  the  "fur- 
ther order  of  this  court "  was  made  and  entered  on 
June  4,  the  stay  hecume  fuiictus  officio,  and  the  plaint- 
iff was  immediately  entitled  to  enter  judgment  against 
the  defendant  for  want  of  an  answer.  Flatt  v.  Town- 
send,  3  Abh.  Pr.  9. 

0.  S.  X.  PecTc,  for  respondent 

By  the  Court. — Whether  the  complaint  was  served 
on  the  22d  or  24th  of  May  need  not  be  considered. 
The  judgment  was  entered  June  4,  and  the  defendant 
was  then  in  default.  The  defendant  obtained  an  order 
to  show  cause  on  May  31,  with  a  stay  of  plaintiff's 
proceedings,  but  no  order  extending  the  time  to  answer 
was  obtained.  On  June  4,  Judge  Hyatt  vacated  the 
stay,  and  the  plaintiff  entered  judgment.  This  he 
had  a  legal  right  to  do.  The  stay  of  proceedings  did 
not  operate  as  an  extension  of  the  time  to  answer. 
Piatt  ?).  Townsend,  3  Abh.Pr.  9  \  Romaine  v.  Cornwell, 
11  Abh.  N.  S.  430. 


CIVIL    PROCEDURE    REPORTS.  191 

Willmore  v.  Flack. 

The  order  is  also  objectionable  because  no  specific 
grounds  of  irregularity  were  specified  in  the  order  to 
show  cause  according  to  the  rules  of  the  supreme 
court.*  The  defendant's  reraedy  was  by  an  application 
to  open  the  default.  The  order  appealed  from  must, 
therefore,  be  reversed  with  costs,  and  with  liberty  to 
make  such  motion  at  special  term  as  the  defendant; 
may  be  advised. 

McAdam,  Ch.  J.,  and  Neiirbas,  J.,  concurred. 


WILLMORE,  Appellant,  v.  FLACK  et  al.,  Exeo- 
UTOES,  ETC.  OF  CONNER,  Deceased, 
Respondents.  • 

Court  of  Appeals,  1884. 

§  3191. 

Appeal  from  iV".  Y.  Marine  {iioio  City)  Court  to  Court  of  Common  Pleat. 
—  Consent  to  final  judgment. — Jurisdiction. — Equity. 

An  appeal  from  an  order  of  the  general  term  of  the  marine  court  (now 
city  court  of  Now  York),  granting  a  new  trial,  is  allowed  onij-  upon 
condition  that  tlie  appellant  consents  to  a  final  judgment  against 
him  if  tlie  order  is  atFnnR'd,['']  and  without  that  consent  tiic  gen- 
eral term  of  the  court  of  common  pleas  has  no  jurisdiction  of  an 
attempted  appeal  to  it  in  such  a  case,[',  ^J  and  any  adjudication 
made  by  it  thereon  is  void.[^] 

Where  the  court  of  common  pleas  was  without  jurisdiction  of  an 
appeal  from  an  order  of  the  marine  court  (now  city  court  of  Now 
York),  granting  a  new  trial  because  no  consent  to  final  judgment, 
in  case  the  order  was  reversed,  was  served  with  the  notice  of  ap- 
peal,— Held,  that  as  the  consent  was  intentionally  and  consciously 
omitted  and. never  given,  but  steadily  and  pres^^tently  refused,  the 

*  General  Eulcs  of  Practice  ;  Rule  37. 


102  CIVIL    PROCEDURE    REPOtlTS. 


"Wilinoif  V.  Flack. 


defect  could  not  be  corrected  by  an  ninendment  nunc  pro  tunc  ;{*] 
that  the  fact  that  tlie  appellant  appeared  in  tlie  appellate  cnnrt  and 
submitted  the  appeal  to  its  jurisdiction  did  not  estop  him  from 
raising  the  question  of  jurisdiction, [*]  and  his  consent  to  ils  exer- 
cise did  not  confer  it.[*] 

The  filing  of  a  remittitur  and  the  docketing  in  the  N.  Y.  marine  (now 
city)  court,  of  a  void  judgment,  rendered  by  the  general  term  of 
the  court  of  common  jjleas,  does  not  give  toitany  ne\vvalidity.[*,'J 

Where  a  void  judgment  for  costs  was  rendered  on  appeal  against  o«o 
*'H.,"  a  city  marshal,  in  an  action  brought  by  him  for  the  benefit 
of  one  "  W."  aud  for  the  costs  of  which  "  W."  was  liable  under  au 
indemnity-bond  given  by  him  to  "II.," — Held,  that  after  exl:aust- 
ing  his  remedy  at  law  for  the  reversal  of  such  judgmeut  W.  might 
maintain  an  action  in  equity  to  set  it  aside.*  [',  ^] 

Wilmore  v.  Flack  (16  N.  Y.   Weekly  Dig.  236),  reversed. 

{Decided  October  7,  1884.) 

Appeal  from  a  judgment,  general  term,  first  depart- 
ment, affirming  a  judgment  dismissing  plaintiff's  com- 
plaint and  an  order  denying  plaintiff's  motion  for  a 
resettlement. 

Reported  below  16  N.  Y.  WeeJdy  Digest,  236. 

This  action  was  brought  by -Barnes  Wilmore  "to 
annul  and  set  aside"  a  judgment  recovered  by  the  de- 
fendant therein  in  a  suit  in  the  N.  Y.  marine  court, 
brought  by  John  H,  Hillier,  solephiintiff,  against  Wil- 
liam C.  Conner,  sole  defendant,  and  to  "annul  and  set 
aside"  an  order  of  the  court  of  common  pleas,  in  the 
same  action,  the  plaintiff  herein  not  being  a  party  to 
the  said  action. 

This  suit  is  based  on  the  following  allegations  of 
the  complaint,  viz.: 

I.  That  an  execution  issued  on  a  judgment  obtained 
in  the  marine  court  in  favor  of  the  plaintiff,  against 
one  Levy,  was  delivered  to  one  John  H.  Hillier,  one  of 
.^ • 

♦  As  to  right  of  party  in  interest  who  is  not  party  to  action  to 
intervene  to  protect  his  rights  and  set  aside  void  proceedings,  sec  U. 
8.  Trust  Co.  V.  N.  Y.  W.  S.  &  B.  Ily.  Co.,  0  N.  T.  Civ.  Pro.  90. 


CIVIL     PROCEDURE     REPORTS.  193 


Wilmoie  v.  Flack. 


the   marshals  of  the   ciry  of  New  York,   for  execu- 
tion. 

II.  That  Hillier,  at  the  time,  had  in  his  possession 
property  of  Levy  sufficient  to  satisfy  the  execution, 
and  which  property  he  had  previously-  levied  on  as 
marshal  under  a  prior  execution,  and  also  held  it  un- 
der an  attachment. 

III.  That  Conner,  then  sheriff,  subsequently,  under 
execatiolis  alleged  to  be  void,  took  the  property  from 
Hillier  by  superior  force  of  arras,  sold  it,  and  converted 
tlie  proceeds. 

IV.  That  in  consequence  thereof,  plaintiff  lost  his 
said  judgment,  there  being  no  other  property  on  which 
talevy.  That  plaintiff  had  idemnified  Hillier  against 
the  claims  of  Conner  and  all  other  persons  to  the  prop- 
erty, and  required  him  to  proceed  to  satisfy  the  judg- 
ment of  the  phiintiff,  notwithstanding  the  claims. 

V.  That  plaintiff  was  about  to  sue  Hillier  for  neglect 
but  was  persuaded  not  to  do  so,  but  to  permit  Hillier 
to  sue  Conner  for  conversion. 

VI.  That  in  pursuance  thereof,  Hillier  sued  Conner 
in  the  marine  court,  and  a  trial  was  had  which  resulted 
in  the  favor  of  Hillier  against  Conner,  upon  which 
jadgRient  was  entered. 

VII.  That  Conner  then  appealed  to  the  general 
term  of  the  marine  court,  where  the  judgment  was  re- 
versed and  a  new  trial  ordered. 

Vilt.  Hillier  then  served  a  notice  of  appeal  to  the 
common  pleas,  and  brought  on  the  pame  (o  a  hearing. 
That  on  his  a[)[>eal  he  Uf^iither  gave  nor  filed  any  stipu- 
lation or  consent  that  if  said  order  should  be  affirmed 
judgment  absolute  might  be  entered  against  him  ;  bur, 
nevertheless,  the  common  pleas,  on  hearing  the  appeal, 
not  only  affirmed  the  order,  "  but,  contrary  to  law,  and 
in  excess  of  its  power  and  jurisdiction,'''  assumed  to 
render  judgment  absolute  against  Hillier,  and  remitted 
fche  said  judgment  to  the  marina  court.  That  in  obedi 
Vol..  VL— 13 


194  CIVIL    PROCEDURE    REPORTS. 


Wilniore  «.-Flack. 


ence  to  the  remittitur,  Judgiuent  absolute  was,  Apiti 
7,  1880,  entered  in  the  rntiiine  court  in  favor  of  Con- 
ner and  against  Hillier  for  SI, 306.04,  the  costs  of  said 
action.  [This  is  the  judgment  soughXto  be  set  aside 
in  this  acrion..] 

IX.  That  from  said.judgment  no  appeal  lies  to  any 
court.  That  the  i>lainri}F  is  advised  that  the  judgment 
is  wholly  without  jurisdiction  and  void.  TJiat  it  is  a 
bar  to  further  proceedings  in  the  action,  and  j-enders 
nugatory  the  order  for  a  new  trinl.  That  the  marine 
court  has  refused  to  vacate  the  judg  uent  or  permit  a 
new  trial,  and  that  the  common  [)leas  has  refused  to 
permit  an  appeal  to  be  taken  from  thejudgment  to  the 
court  of  appeals.  By  the  indemnity  he  (plaint ilT)  gave 
to  Hillier,  as  he  is  advised,  he  is  liable  to  pny  the; 
whole  of  the  judgment.  That  Hillier  is,  as  he  is  in- 
formed,-insolvent,  and  no  longer  amarshal  oi  the  city. 
That  shortly  after  commencing  the  said  action,  Hillier 
resigned  as  marshal,  and  was  appointed  by  Conner  a 
deputy  sheriff,  and  acted  as  such  duiing  Conner's 
term  of  ofHce  as  sheriff.  That  on  such  appointment 
Hillier  manifested  a  desire  to  abandon  the  prosecution 
of  the  suit,  disregarding  the  rights  of  the.  plain  tiff,  and 
even  gave  testimony  on  the  first  trial  against  theright-s 
and  interests  of  the  plaintiff;  and,  as  alleged,  against 
the  truth  and  afterwards  he  voluntarily  made 
affidavits  for  Conner  which  were  used  in  the  action 
against  the  prosec^it ion  thereof.  That  he  afterwards 
refused  to  permit  the  further  prosecution  of  the  suit 
unless  the  plaintiff  further  indemnified  him,  and  plaint- 
iff did  thereupon  indemnify  him  against  anytliing 
which  miglit  result  against  his  person  by  way  of  anest 
or  imprisonment  on  the  further  prosecution  of  the 
action.  Notwithstanding  this,  Hillitrr  afterwards  fur- 
nished Conner's  attorneys  with  an  affidavit  to  be  used 
by  them,  and  which  was  used  in  opposing  an  applica- 
tion to  the  court  of  common  pleas  for  leave  to  appeal, 


CTYIL    VUOCWXTRl^    REPOllTS.  f^ 

Wilmore  v.  Flack. 

wliicli  applicntion  was  in  conseqlience  thereof  denied. 
That  Hilli^r  and  Conner,  after  IliHier's  appointment, 
entered  into  a  corrupt  a'greemenf  or  understanding 
that  Hillier  should  aidConner  in  the  defense  of  the 
snid  action  and  make  no  active  efforts  to  prosecute  it 
to  a  successful  termination.  On  the  other  hand,  it 
was  agreed  that  if' -Conner  should  succeed,  no  part  of 
a4iy  judgment  should  be  collected  or^demanded  from 
the  said  Hillier. 

X,  That  Conner  died  in  April,  l-SSl,  leaving  an  es- 
tate and  last  will  and  testament,  appointing  the  defend- 
ants Flack,  W.  C.  and  J.  P.  Conner,  executors,  who 
qualified. 

XL  That  -Hillier  has  been  requested  4:0  bring  this 
action,  but  has  refused  to  do  so. 

Xn.  That  j)laintiff  has  no  adequate  remedy  at  law. 

As  relief,  plaintiff  prays  that  the  jadgment  recov- 
ered by  Conner  against  Hillier  April  7,  18S0,  in  the 
marine  court  for  $1,300.04,  be  annulled  and  set  aside, 
as  well  as  the  order  of  the  court  of  common  x^l^fis  di- 
recting the  entry  of  judgment  absolute  in  that  action. 

The  defendants'  answer,  among  other  things,  con- 
tained a  second  defense,  as  follows  : 

"  Second  defense. — -And  as  a  further,  separate  and 
distinct  defense  to  the  matters  in  the  complaint  con- 
tained, denying  the  same  in  manner  and  form  as  they 
are  hereinbefore  denied,  these  defendants,  upon  their 
information  and  belief,  aver  that  the  cause  of  action 
in  the  complaint  alleged,  if  any,  did  not  arise,  accrue 
or  happen  within  one  year  next  preceding  the  com- 
mencement of  the  action. 

To  this  defense  the  plaintiff  demurred  "on  the 
ground  that  it  is  insufficient  in  law  upon  the  face  there- 
of, to  constitute  a  defense." 

On  the  demurrer  coming  on  to  be  heard  at  special 
term,  the  defendants  claimed  that  the  second  defense 
of  the  answer,  running  as  it  did  to  the  whole  complaint, 


196  CIVIL    PROCEDURE    REPORTS. 

"VVilmore  v.  Fliick. 

having  been  demurred  to,  it  was  competent  for  the 
defendants  to  attack  the  sufficiency  of  tiie  complaint, 
which  they  did,  on  the  ground  that  it  did  not  state  facts 
sufficient  to  constitute  a  cause  of  action.  After  con- 
sideration, the  court  decided  the  case  in  favor  of  the 
position  taken  by  tlie  defendants.  Whereupon  it  was 
ordered  that  the  demurrer  be  overruled,  and  that  the 
defendant  have  judgment  thereon  for  the  dismissal 
of  the  plaintilf  s  complaint  with  costs,  but  with  leave 
for  plaintiff  to  withdraw  his  demurrer  within  twenty 
days  upon  payment  of  defendant's  costs  as  the  same 
should  be  taxed.  Thereupon  judgment  was  entered. 
Application  was  then  made  for  a  resettlement  of  the 
order,  the  plaintiff  seeking  to  modify  it  in  respect  to 
its  provisions  with  reference  tjo  the  costs.  This  n)otion 
was  denied,  and  the  plaintiff  appealed  both  from  the 
order  and  from  the  judgment  to  the  general  term 
where  the  judgment  and  order  Avere  affirmed.  Judg- 
ment of  affirmance  was  entered  from  which  judgment 
affirming  the  judgment  dismissing  plaintiff's  action 
this  appeal  is  taken. 

Edward  P.  Wilder,  for  appellant. 

The  complaint  is  sufficient  as  invoking  the  equitable 
powers  of  this  court  to  set  aside  the  judgment  of  the 
marine  court  as  void  for  want  of  jurisdiction.  It  ap- 
pearing that  no  appeal  or  other  remedy  at  law  lies,  and 
that  Llie  court  is  one  of  lf)cal  and  limited  jurisdiction, 
its  judgment  is  a  juoper  subject  of  attack  by  such  an 
action  as  the  present.  That  the  judgment  is  void  for 
lack  of  jurisdiction  see  People  v.  Talcott,  21  IJmi,  7/Xl ; 
Laws  of  1874,  chap.  515,  §  9;  Gordon  v.  Ilartman,  79 
N.  Y.  221,  and  thut  equity  will  interfere  to  set  aside 
such  a  judgment  or  to  restrain  its  execution  or  its 
o'peration  \u  any  way  which  would  wwk  injustice.  See 
Story's  Eq.  Jvr.  f§  885,  886,  887  and  cases  there  cited. 

The  plaintiff  is  not  estopped  from  invoking  the 


CIVIL    PKOCEDUllE    REPORTS.  197 

i  Wilmore  v.  Fluck. 

equitable  interference  of  this  court,  from  the  fact  that 
his  trustee,  Hillier,  himself,  took   the  appeal   to   the 
common  pleas,  whicli  has  resulted  in  the  judgment 
complained  of.    It  might  be  argued  that  l^e  is  estopped 
from  questioning  the  jurisdiction  of  the -common  plenis 
in  so  far  as  related  to  an  affirmance  of  the  order  ap- 
pealed from,  togetlw^r  with  such  incidents  by  way  of 
costs  as  the  law  imposes  in  such  cases.    But  the  estop- 
pel goes   no  fur-ther  thnn  the  notice  of  appeal,  and 
neither  plaintiff  nor  Hillier  c;in  be  estopped  from  com- 
plaining against  the  exercise  of  a  jurisdiction  which 
was  not  conferred  nor  invoked  by  that  notice.     The 
jurisdiction  to  render  judgment  absolute  is  derived  not 
from  the  mere  act  of  ap[)ealing,  but  from  the  "assent" 
that  such  a  judgment  may  be  rendered.     As  neither 
Hillier  nor  the  plaintiff,  whois  his  ceslui  que£}'ust,  ever 
gave  such  assent,  how  is  plaintiff  esto[)ped  from  ques- 
tioning the  riglit  of  the  court  to  render  such  a  judg- 
ment?    See  same  principle  applied  to  an  a[)peal  fr(  m 
conviction  for  larceny,  where  the  indictment  charged 
both  larceny  and  burglary.     Held,  that  a  reversal  and 
new  trial  revived  the  charge  of  larceny  only,  and  not 
that  of  burglnry ;  upon  the  principle  thnt  the  piisoner 
•by  appealing  waived  his  privilege  as  to  one,  but  kept 
it  as  to  the  other.    Per  Folger,  C.  J.,  in   People  v. 
Downing,  84  JV.  Y.  4S3-4.     The  right  of  iipjienl  to  the 
court  of  common  pleas,  from  the  order  of  the  mnrine 
court,  general  term,  granting  a  new  trial  is  like  that  of 
an  appeal  to  the  conrt  of  appeals  for  a  similar  order  of 
this  court,  and  the  same  principles  and   authorities 
may  be  applied  to  the  former  as  to  the  latter.     See 
McEteere  ^.Little,  8  Dal?/,  167.     The  right  of  appeal 
in  such  a  case  to  the  court  of  appeals  was  first  con- 
ferred in  1851.     Prior  to  the  amendments  of  section  11 
of  the  Code  of  Procedure,  in  that  year  such  orders 
were  not  appealable  at  all.     The  question  had  arisen 
whether  they  were  not  reviewable  under  the  "general 


W8  CIVIL    PROCEDURE    REPORTS. 

Wilmore  v.  Flack, 

powers"  of  the  court,  but  a  negative  answer  was  givea 
by  the  court  of  appeals.  Lansing  v.  Russell,  2  Const. 
6C3  ;  Tilley  v.  Phillips,  1  Id.  GIO;  Duaue  v.  Nortberi> 
R.  R.  Co.,  3i6^.  645...  .  . 

The  defendants'  testator,  if  better  advised  than  Hil-, 
}ier  as  to  the  law,  ought  to  have  moved  to  dismiss  iha 
appeal  for  want  of  that  element  of  jurisdiction.  (See 
Rust  V.  Hansel t,  60  N.  Y.  485  ;  9  Ahb.  iV.  C.  150).  Not? 
having  so  moved,  he  must  be  taken  to  have  acquiesced 
in  the  plaintiff's  view  of  the  scope  of  his  appeal,  and 
to  have  consented  that  in  case  the  order  should  be 
affirmed,  the  only  result  of  such  affirmance  would  be 
to  lemit  the  case  for  a  new  trial.  He  had  no  right,  to 
go  further  and  ask  the  court  to  do  something  which, 
neither  the  statute  nor  any  "assent"  on  the  part  of. 
the  phiintitf  had  given  it  power  to  do. 

SeeMcMahon  o.  Rauhr,  47  N.  Y.  72;  People  v.\ 
The  Clerk,  etc.,  3  Abb.  Fn  3()» 

"Consent  cannot  give  jurisdiction  to  an  appellate- 
court."  ....  Henry  o.  Cnyler,  17./<)/i;is.  4(39;   Camp- 
bell V.  Stokes,  2  Wend.  146  ;  Dudley  v.  Mayhew,  3  iV. 
Y.  9  ;  People  v.  The  Clerk,  etc.,  3  x\bb.  Pr.  309.  The  com-^ 
plaint  is  sufficient  in   that  it  invokes  equitable  juris- 
diction an  the  ground  of  fraud  and  collusion  betweeiv 
Hellier  and  Conner,    Hillier  undertook  rliesuit  ngainst- 
Conner  for  Wilmore's  benefit  and  under  V^ilmore's 
bond   of   inderiinity,    and   in   })ursu;ince  of   a  speci.il'^ 
agreement  with  Wilmore.     That  ho  had  a  right  \n  do 
this,  see  Rowland  v.  Willets,   9  ■  iY.   Y.  171;  Anson;:! 
Co,  V.  Pratt,  10  Hun,  443,     The  jurisdiclion  of  rqidiy 
to  relieve  again.st  judguieuts  secuiied  by  fraud  and  <-(i!- 
Insion   is  Ix-yond  qut^stion.     Story' s.  Eq.  Jirr.  ^  1.074. 
1.^75;  State  of   Michigjin  v.  Plioenix  Bank,  ;>}  K.    }7 

24,  28,  and  cases  cited It  is  no  ohj^criou   that. 

plaintiff  was  not  a  party  to  the  action  of  Hillier  r.  Con- 
ner, the  judgment  in  which  is  sought  to  be  set  aside. 

Either  Hillier  or  plaintiff  could  even  hav«  brought- 


GIYIL    PROCEDURE    REPOm^i  1^9 

"VVilmorc  v.  Flack. 

the  original  action,  ^md  whichever  brought  it,  the 
other  could  have  been  restrained  from  biinging  a  sim- 
ilar action,  on  the  ground  that  the  law  would  not  i)er- 
mit  Conner  to  suffer  from-  two  actionSj  or  the  parties 
to  have  two  recoveries  against  him.  See  Howland  v.- 
AVillets,  9  JV.  Y.  174,  and  cases  there  cited  ;  also  Codey 
13249  ;  Giles  o.  Hylbert,  12  N.  Y.  31. 

In  the  case  last  cited  the  judgment  creditor,  under 
whose  execution  the  sheiiff  iiad  brought  the  action, 
was  held  to  be  "immediately  and  directly  interested 
in  the  levy,  and  the  property  or  money  acquired  by 
virtue  thereof,"  so  mucli  so  that  being  the  party  for 
whose  immediate  benefit  this  action  is  defended,  he 
was  not  a  competent  witness  for  the  defendant,  and 
t4ie  court  did  right  in  excluding  his  testimony."  See 
aiso  as  to  i:)rivity  in  such  cases  the  following  authori- 
ties: Blgelom  on  Estoppel  (2d  ed.)  pp.  0(5,  69;  Free- 
man on  Judgments,  §§  104,  173.  174,  179,  184 ;  L(jve- 
j^y  V.  Murray,  3.  Wall.  1  ;  Jackson  o.  Griswold,  4^/7Z^, 
522  ;  Flake  v.  Smith,  2A.bh.  CL  App:  Dec.  77  ;  Whitney 
z».  Cooper,  1  Zf/ZZ,  029;  Colward  o.  Coo[)er,  7  Wend. 
407. 

The  learned  justice  remarks  that  Hillierhas  not  as 
3'et  made  any  claim  upon  the  plaintiff  ui)on  his  bonds 
of  indemnit}'.  But  it  is  plain  that  cannot  be  the  test. 
It  is  enougk  that  plaintiff  is  liable  to  Hillier  upon  the 
bond.  It  has  ever  been  one  of  the  functions  of  equity 
to  prevent  the  doing  of  mischief  without-  waiting  until 
it- is  done. 

liohevt  S.  Green  {Yanderpoely  Green  c6  Cuming^ 
attornnys),  for  respondents. 

Plaintiff  has  no  standing  in  court  to  demand  the 
relief  asked.  He  seeks  in  the  supreme  court  to 
annul  and  set  aside  a  judgment  and  an  order  of  other 
courts  in  a  suit  in  Avhich  he  was  not  a  party  or  privj'. 
.  .  .  Freeman  on  Judgments^  §512.   "  No  person  will 


200  CIVIL    PROCEDURE    REPORTS. 

VVilmore  v.  Flack. 

be  permitted  to  proceed  in  equity  against  a  judgment 
or  decree  to  which  he  was  not  a  party,  and  which  did 
not  at  its  rendition  affect  any  of  his  rij^hts."  Sroiui  v. 
Towne,  91  U,  S.  341  ;  Jordan  r.  Williams,  3  Jiand. 
(Fa.)  501. 

If  the  judgment  and  order  sought  to  be  set  aside 
are  void  for  want  of  jurisdiction,  phiintiff  cannot 
invoke  equitable  interference,  as  his  remedy  at  law  is 
complete.  The  threatened  danger  to  the  X)laintilf,  to 
avert  which  he  invokes  the  aid  of  a  court  of  equity,  is 
that  he  may  be  sued  on  his  indemnity  bond,  which  suit 
will  be  based  on  the  judgment  entered,  as  he  claims 
without  jurisdiction.  The  authorities  bearing  on  the 
question  as  to  when  jurisdiction  can  be  inquired  into^ 
establish  :  1.  That  want  of  jurisdiction  is  a  matter 
which  may  always  be  set  up  against  a  judgment  when 
it  is  sougiit  to  be  enforced,  or  when  any  benefit  is 
claimed  under  it.  Latham  v.  Edgerton,  9  Coic.  227. 
2.  The  jurisdiction  of  any  court  exercising  authority 
over  a  subject  may  be  inquired  into  in  iiny  court  where 
the  proceedings  of  the  former  are  brought  by  a  party 
claiming  the  benefit  of  them-.  Pendleton  v.  Weed,  17 
JV.  T.  76.  See  also  Starbuck  ».  Murray,  6  Wend.  148  ; 
Mills  V.  Martin,  19  Jolins.  33;  Bloom  zj.  Burdick, 
1  Hill,  130;  Chenning  Bank  ?).  Judson,  8  N.  Y.  2r)4 ; 
Ferguson  v.  Crawford,  70  Id.  266  ;  Metcalf  v.  Willams, 
104  U.  S.  93. 

If  the  judgment  is  void  forwant  of  jurisdiction  and 
the  order  also,  that  fact  can  always  and  in  any  court 
be  shown  effectively  by  the  plaintiff  if  they  are  sought 
to  be  used  against  him  ;  his  remedy  is  there  complete, 
and  a  court  of  equity  will  not  interfere. 

Even  if  the  marine  court  in  entering  its  judgment, 
or  the  court  of  common  pleas,  in  making  its  or<ler, 
<jrred,  no  ground  of  equitable  interference  by  the 
supreme  court  is  furnished  thereby.  A  court  of  equity 
will  not  grant  relief  on  the  ground  that  the  court  of 


CIVIL    PROCEDURE    REPORTS.  201 


Wilmore  v.  Flack. 


law  erred.  "An  interference  on  such  ground  would 
convert  a  court  of  chancery  into  a  court  for  the  correc- 
tion of  errors,  and  would  be  an  assumption  of  jurisdic- 
tion which  does  not  belong  to  the  court."  Vaughn  », 
Stock to!i,  1  StocJc.  17o  ;  Simpson  -y.  Hart,  1  Johns.  Ch. 
95,  99  ;  Holmes  v.  Remsen,  7  Id.  286  ;  Star  Ins.  Co.  •». 
Hodgson,  7  Cranch,  33G-7  ;  Yance}'  v.  Downer,  5  Littell^ 
8  ;  S.  C,  15  Amer.  Dec.  35,  and  note  ;  Slonj  Eq,  Juris. 
§  897.  If  the  contention  of  the  plaintiii"  is  correct,  the 
marine  court  had  jurisdiction  of  the  parties  and  of  the 
subject  matter,  and  it  never  lost  that  jurisdiction,  but 
rendered  an  erroneous  judgment  on  an  order  of  a  court 
which  never  had  jurisdiction.  This  is  a  judgment 
erroneously  entered,  but  in  the  marine  court  having 
jurisdiction,  and  does  not  come  within  the  rule  permit- 
ting interference  with  judgments  entered  without 
jurisdiction.  The  marine  court  liad  full  power  to  cor- 
rect its  errors,  and  a  court  of  equity  will  not  interfere. 
Metcalf  V.  Gilmore,  29  Alb.  Law  J.  203. 

A  court  of  equity  will  not  now  relieve  where  the 
complaint  is  in  the  nature  of  a  bill  for  a  new  trial  in  a 
court  of  law.  Auvderson  v.  Roberts,  18  Johns.  633 ; 
Powers  V.  Butler,  3  Green" s  Ch.  465.  Especially  where 
the  party  has  lost  his  opportunity  at  law  by  his  own 
negligence.  Dodge  v.  Strong,  2  Jolius,  Ch.  230,  and. 
cases  cited — particularly  Smith  v.  Lowery,  Johns.  Ch. 
320  ;  Floyd  v.  Jnques,  6  Id.  479  ;  Willard's  Equity.., 
358  ;  Glover  o.  Hedges,  Saxton.,  113 ;  Fowler  v.  lioe,  3 
StocJc.  367. 

Courts  of  equity  do  not  now  interfere  with  judg- 
ments of  other  courts  where  there  has  been  negligence 
on  the  part  of  the  party  seeking  relief,  or  because  the 
other  court  erroneously  decided  the  law.  Smith  v.  Nel- 
son, 62  N.  Y.  288  ;  St  ill  well  x.  Carpenter,  59  Id.  423. 

If  plaintiff  was  in  any  position  as  privy  to  the  judg- 
ment or  order,  it  would  not  avail — the  defect  in  the 
notice  of  appeal  was  a  mere  irregularity  under  the  cir- 


203  CIVIL    PROGEDURE    REPORTS. 

Wilmore  v.  Flack. 

cumstances.  Conner  might  have  taken  advantage  of  ifc 
— but  both  parties  acted  under  it — the  appellant  ex^ 
perimented  and  lost.  The  notice  of  api}eal  was  not 
a  nullity,  but  amendable  nunc  pro  lime.  Hillier  v. 
Conner,  11  iV.  Y.  Weeldy  Big.  474  ;  Wood  ?).  Kelly,  3 
Hill.,  334  ;  Mott  z?.  Lansing,  5  Lans.  51 G;  Irwin  v.  Muirj 
18  How  Pr.  409. 

There  is  a  clear  distinction  between  cases  where  tha 
defect  is  the  omission  of  the  party  to  do  some  act,  and 
oases  where  there  is  no  jurisdiction  in  any  event,  a» 
was  the  case  in  McMahon  'c.  llauhr,  47  N.  Y.  T2 ;  Peo* 
X)le  v.  The  Clerk,  3  Abb.  Pr.  320,  and  Bamberg -y.  Stern^, 
76  iV.  r.i)56. 

Finch,  Ji — The  general  term  of  the  common  pleas 
had  no  jurisdiction  of    the  attem[)ted  appejil   to 
['J     that  tribunal.     Its  appellate  power  was  derived 
wholly  from  the  statute  and  had  no  existence  out- 
side of  its  permission.     An  appeal  from  an  order  of  the 
general  term  of  the  marine  court  granting  a  new 
[']     trial,  is  allowed  only  upon  condition  that  the  ai>- 
pellant  consents  to  a  iinal  judgment  against  him  if 
the  order  is  affirmed.   Laws  of  1874,  chap.  r)45,  9  ;  Gor- 
don V.  Hartman,  89  N.  Y.  221.     Without  that  consent 
there  can  be  no  appeal,  and  much  less  a  iinal  judg- 
ment founded  upon  it  and  impossible  without  it.     The 
order  and  judgment   of   the  common   pleais  was, 
[*]     therefore,  without  jurisdiction  and  void,  and  judg- 
ment entered  in  the  marine  court  founded  u[;ou 
that  void  mandate  was  itself  equally  so.     IS'everthe- 
less,  both  tribunals  have  held  the  contrary  and  insist- 
ed against  the  motion  of  the  plainxilT  that  their  action 
was  valid,  and  the  iinal  judgment  rendered,  e/foctual. 
They  have  done  so  apparently  upon  the  ground  that 
the  omission  from  the  notice  of  appeal  of  the  requisite 
consent  was  amendable,  and  that    the  appellant  was 
estopped  by  hid  apiiearance  in  the  appellate  court  and 


ClVm    PROCEDTJRE    REPORTS.  208 

(.. . 

'  Wilmore  v.  Flack. 

submissions  of  the  appeal  to  its  jurisdiclion.  That  a 
consent  intended  to  be  given,,  but  omitted  from  the 
notice  of  appeal  by  mistake,  and  when  the  appellant? 
in  fact  consented,  might  be  inserted  nunc  pro  tuhCy 
may  be  conceded  for  the  purposes  of  the  aigument ;. 
but  where  there  has  been  no  mistake  because  no 
[*]  consent,  and  the  latter  Mas  intentionally  and  con- 
sciously omitted,  and  has  never  been  given,  but. 
steadily  and  persistently  refused,- we  do  not  see  how. 
it- is  possible  to  acquire  jurisdiction  by  an  amendment- 
which  falsifies  the  facts  and  originates  only  in  the  ar- 
bitrary will  of  the  court.  The  right  to  give  or  with-a 
hold  the  consent  does  not  belong  to  the  court  but  to* 
t-lie  party,  and  his  free  choice  and  option  cannot  be^ 
taken  away  under  the  guise  of  correcting  a  mistake  or. 
oversight. 

Nor  is  the  plaintiff  estopx>ed  from  raising  the  ques- 
tion of  jurisdiction.     His  consent  to  its  exercise- 
[*]     could  not  confer  it.   McMahon  d.  Rauher,.47  N.  F. 
67.     If  it  did  or  could,  it  is  still  true  that  the  ap- 
pellant did  not  consent  to  the  jurisdiction  assumed... 
He  misled  nobody.     All  parties  acted  in  good  faith  on, 
the  appeal,  and  under  a  common  mistake  of  the  law.. 
The  respondent  and  the  court    had  no  right   to  rely, 
upon  the  appellant's  interpretation  of  the  act  of  1874. 
Each  was  quite  as  much  bound  to  know  and  recognize- 
the  lack  of  jurisdiction  as  the  appellant  himself.     At- 
the  bottom  of  an  estoppel  lies  either  fraud  or  some- 
thing wliick  operates-  as  such.     Here  there  was  none,, 
but  simply  an  honest  mistake  for  which  each  party 
and  the  court  were  equally  responsible. 

The  situation  of  the  plaintiff  appears  to  be  one  iu. 
which  there  exists  a  definite  right  without  adequate 
remedy,  unless  a  court  of  equity  can  furnish  it.  The 
original  action  of  Hillier  was  wholly  for  the  benefit  of 
the  plaintiff.  He  stood  behind  it  as  the  party  inter- 
ested, and  having  indemnified  the  marshal  against  its, 


204  CIVIL    PROCEDURE    REPORTS. 

Wilmore  v.  Flack. 

consequences,  Hillier  recovered  a  jiidginenr.  The  i>ro- 
ceeds  of  it  belonged  and  were  payable  to  the  i)laiiitiff ; 
but  an  appeal  was  taken  to  the  general  tei-m  of  tha 
marine  court,  which  reversed  the  judgment  and  ordered 
a  new  trial.  All  that  followed  was  a  nullity,  and  yet 
out  of  that  void  action  the  plaintiff  iinds  himself 
barred  of  the  new  trial  by  a  final  judgment  against  liira 
and  exposed  through  his  ind^mnit^-  to  liability  for  a 
serious  bill  of  costs.  He,  at  lirst,  pursues  his  remedy 
at  law.  He  aslis  the  marine  court  and  the  common 
pleas  to  set  aside  the  judgment  which  they  had  no  jur- 
isdiction to  render.  They  refuse  ;  then  he  appeals  to 
the  power  of  a  court  of  equity  and  is  again  defeated, 
substantially  upon  the  ground  that  he  has  a  perfeot 
remedy  at  law,  and  that  the  final  judgment  entered 
in  the  marine  court  was  within  its  jurisdiction  even 
though  the  judgment  and  remittitur  of  the  common 
pleas  were  absolutely  void.  The  argument  is  that  the 
final  judgment  entered  in  the  marine  court  was  mere- 
ly erroneous,  and  equity  will  not  set  it  aside  for  that 
reason.  The  ultimate  question  therefore,  is  whether 
such  judgment  wasmerely  erroneousand  so  good  until 
reversed,  or  utterly  void  as  entered  without  lawful 
authority  and  jurisdiction. 

In  the  original  action  the  marine  court  had  Juris- 
dicti{m,both  of  the  bubject  matter  and  of  the  persons 
of  the  litigants,  and  so  might  have  rendered  a  iinal 
judgment  equivalent  in  its  eiTect  to  that  now  upon  its 
records.  But  it  did  not  do  so.  It  made  no  such  de- 
termination of  its  own.  On  the  contrary,  its  deter- 
mii'ation  was  an  award  of  a  new  trial.  The  final  judg- 
ment entered  was  that  of.  the  common  pleas,  registered 
or  docketed  so  to  si)eak,  in  the  marine  court,  in  obedi- 
ence to  a  s[)ecial  statutory  authority.  The  act  of  1875, 
which  authorized  an  appeal  to  the  common  pleas  from 
an  order  granting  a  new  trial,  required  as  a  condition, 
the  appellant's  consent  to  final  judgment,  and  directed 


CIVIL    PROCEDURE    REPORTS.  205 

Wilmore  v.  Flack. 

that  "effect  shall  be  given  by  the  appellate  court  to 
such  stipulation  if  necessary"  (39).  The  act  of  1875 
more  specifically  provided  that  the  appellate  court 
"  may  render  judgment  absolute  upon  the  right  of  the 
appellant,"  So  that  the  final  judgment  here  was  that 
of  the  appellate  court,  and  if  absolutely  void  for 
[°]  want  of  jurisdiction,  how  could  it  become  less  de- 
fective because  submitted  to  the  marine  court  and 
entered  on  its  records  \  Is  its  essential  character  changed 
by  that  process  I  If  upon  the  judgment  for  costs  thus 
entered  in  the  marine  court,  proceedings  to  collect  were 
instituted,  and  the  judgment  debtor  resisted  on  the 
ground  that  the  judgment  was  void,  would  it  be  a  suf- 
ficient answer  that  the  judgment  was  good  until  re- 
versed? Suppose  that  this  court  on  a  similar  appeal 
should  render  a  decision  without  a  quorum,  and  send 
down  its  remittitur,  and  its  judgment  should  be  made 
by  formal  order  the  judgment  of  the  supreme  court, 
would  the  latter  be  merely  erroneous  and  good  until 
reversed,  or  absolutely  void  and  a  mere  nullity?  We 
think  in  such  case  the  judgment  entered  on  the  remit- 
titur gains  no  new  validity  beyond  that  which  it  had 
in  the  appellate  court,  but  remains  void  if  it  was  so  in 
fact  when  remitted  to  be  enforced.  If  a  judgment 
should  be  rendered  in  justice's  court  which  was  abso- 
lutely void  for  want  of  jurisdiction,  and  thereafter, 
upon  transcript  filed,  was  entered  in  and  became  the 
judgment  of  the  county  court,  it  would  gain  from  the 
process  no  new  validity.  The  judgment  entered  in  the 
marine  court  was  a  step  in  an  a[)pellate  proceeding  and 
must  be  measured  by  the  statutory  requirements.  It 
was  not  a  judgment  of  the  nuirine  court  itself,  founded 
upon  its  original  jurisdiction,  but  the  culmination  of 
an  appeal  dependent  wholly  for  its  validity  upon  the 
authority  of  the  appellate  court.  The  case,  there- 
[^]  fore,  is  not  one,  as  the  general  term  argue,  in  which 
a  court  of  equity  is  called  upon  to  review  a  mere 


«06  CIVIL    VROCEDXTRE    REPORTS. 

Wilmore  v.  Flack. 

ftrrorsof  law  committed  ^y  another  tribunal,  but  one  in 
whiclta  void  judgment  bam  the  rights  of  the  plaintiff 
after  his  remedy  at  law  has  been  exhausted. 

Tlie  special  term  seem  to  have  thosght  that  the 
legal  remedy  was  not  exhausted,  and  argue  that  tire 
jlidgment  for  costs  has  not  yet  put  in  peril  the  j)lnint- 
i^'s  liability  as  the  marshal's  indemnitor,  and  if  it 
s4iould  hemight  defend  on  the  ground  of  the  invalidity 
of  the  judgment.  If  sued  on  his  bond  in  the  marine 
•court  the  defense  would  only  renew  the  question  upon 
which  that  court  and  its  appellate  tribunal  have 
already  decided  against  him.  B^it  he  has  a  further 
right,  and  that  is  to  the  new  tri-al  vvhicli  the  marine 
court  awarded  him,  and  that  he>  cannot  have  unless 
equity  can  remove  the  obstruction  of  the  linal  judgment 
against  him, 

The,wliole  difficulty  in  thecase  originated  in  a  mis- 
take as  to  the  jurisdiction  of  tlie  common  pleas  over 
the  appeal  sought  to  be  taken  ;  a  mistake  in  which 
both  parties  shared,  and  which  the  court  did  not 
correct. 

That  mistake  resulted  in  a  Judgment  of  the  common 

pleas  which  was  entirely  void,  and  did  not  become  ■ 

["J    valid  by  being  remitted  to  the  mnrine  court  arid 

made  its  judgment.    In  such  a  case  we  think  equity 

may  relieve,  and  that  the  plaintiff's  complaint  Uiere- 

fore  contained  a  good  cause  of  action. 

The  judgment  should  be  reverp'ed  *snd  u  new  trial 
granted  ;  costs  to  abide  the  2vent. 

Ali  oouourred. 


'GTVIL    PROGEDURE    REPORTS.  -I^m 


Gearon  v.  Bank  for  Savinjjs. 


OEARON,  Appeli>ant,  v.  THE  BANK  FOR  SAV- 
INGS, Impleaded,  Respoxdext. 

N.  Y.  Superior  €ouuT,  General  Term,  March,  188.4. 

§  55. 

'Attorn ei/  and  client — arrd^t.  • 

^In  the  absence, of  special  autliority,  express  or  implied,  by  the  client, 
or  of  ratification  by  him,  the  act  of  tlic  attorney  in  directing  the 
slierilT  to  arrest  the  wrong  personage  iinder  a  warrant  ofattachmeivt 
issued  in  the  action,  docs  not  make  the  client  liable. 

'■•Guillcaumo  v.  Rowe,  48  Super.  Ct.  170  ;  Ponciier  v.  Blanchard,  86  N. 
T.  263  ;  WelslvtJ.  Cochran,  63  7tZ.  182  ;  Williams  r.  Pieston,  47  M. 
.r.  Rep.  N.  8.  265  ;  Smith  v.  Keal,-46  L.  T.  Rep.  N.  S.  770,  cited 
and  reviewed. 

ylDecided  April  7,  1884.) 

Appeal  from  judgment  dismissing  the  complaint  on 
>4he  merits. 

Action  for  false  imprisonment. 

The  facts  are  stated  in  the  opinion. 

3Iiles  Gear-on  and  William  II.  Arnoitx,  for  appel- 
lant. 

The  act  complained  of  was  chargeable  to  the  re- 
-spondent  by  reason  of  the  relation  existing  between 
-its  attorneys,  and  because  it  was  done  by  the  attorneys 
in  the  course  of  their  employment.  The  acts  of  an  at- 
torney's clerk  in  the  course  of  his  employment  are  the 
.acts  of  the  attorney  Ostrich  -o.  Gilbert,  9  Hun,  242. 
The  rule  that  a  i^rincipnl  is  not  liable  for  acts  of  an  at- 
torney done  after  the  issuing  of  an  execution,  is  inap- 
plicable to  a  case  where  the  directions  are  given  in  the 


2C8  CIVIL    PROCEDURE    REPOR'I'S. 


Gcaron  v.  Bank  for  Savings. 


course  of  its  prosecution.  The  same  distinction  lias 
been  pointed  out  in  this  court  in  Guilleaume  v.  Rowe, 
63  IIow.  Pr.  175 ;  S.  C,  48  Super.  Ct.  169 ;  18  W.  D. 
196,  and  Barker  v.  Braham,  3  Wilson,  368. 

See  also  as  to  defendant's  liability,  6  Ilun^  422  ; 
Bates  V.  Pilling ;  Barn  v.  Cress,  38  ;  Barker  v.  Bra- 
ham,  2  W.  Bl.  860 ;  Brown  v.  Feeter,  7  Wend.  30j  ; 
Griswold  v.  Sedgwick,  6  Cow.  456 ;  Miller  v.  Foley, 
28  Barb.  630 ;  Davies  v.  Jenkins,  11  Mees.  ct  W.  754 ; 
McMahon  v.  Green,  34  Vt.  69 ;  Dnnstan  v.  Paterson, 
2  Comm.  Bench,  N.  8.  495. 

Strong  &  Cadwalader.,  for  respondent- 

I.  No  one  has  a  right  to  interfere  with  the  sheriff 
to  direct  him  whom  to  arrest,  or  to  instrnct  hira  in  the 
performance  of  his  duty.  An}^  citizen  maj'  assist  liim 
by  opinions,  but  does  not  thereb}''  become  an  original 
tort  feasor.  It  is  not  within  the  duty  or  employment; 
of  attorneys,  much  less  of  Lynn,  a  quasi  volunteer,  or 
of  Stewart,  or  of  the  managing  clerk,  by  verbal  advice 
or  direction  given  to  the  sheriff  to  render  the  plaintiff  in 
an  action  liable  for  the  result  of  such  advice  or  instruc- 
tion. Averill  v.  Williams,  4  Den.  295 ;  Welsh  v.  Coch- 
ran, 63  N.  T.  181 ;  Guilleaume  v.  Rowe,  16  J.  &  S. 
172;  Clark  7).  Woodruff,  S3  JY.  F.  618  ;  Smith  v.  Keal, 
9  L.  R.  Q.  B.  344. 

II.  (1.)  There  ifi  no  distinction  in  this  case,  because 
the  act  w^as  d<jne  during  and  not  at  the  end  of  a  liti- 
gation. The  ground  assumed  in  the  case  is,  that  an 
authority  to  arrest  or  to  levy  is  authority  only  to  lew 
on  proper  goods,  or  to  arrest  the  right  party,  or  to 
issue  a  writ  of  commitment  to  the  sheriff,  but  never  to 
commit  a  trespass.  (2.)  Nor  is  there  a  difference  be- 
tween directions  to  secure  property  and  directions  to 
arrest  i)ersons ;  both  are  trespasses.  In  both  the 
principal  must;  be  held  if  at  all,  for  the  sheriff's  acts, 
by  his  direction  communicated  through  his  solicitors, 


CIVIL    PROCEDURE    REPORTS.  209 

Ocaioii  V.  Bank  fi>r  Saving's. 

and  sncli  directions  aie  held  beyond   the  attorney's 
authority. 

O' Gorman,  J. — The  material  facts,  as  they  appeared 
in  evidence  at  the  tiiiil,  are  sabstantiaHy  rhese:  An 
action  was  brought  in  the  supreme  court  of  this  ju- 
dicial department,  by  the  Bank  for  Siivings,  the  pres- 
ent defendant  herein,  on  the  ground  that  different  per- 
sons had  laid  claim  to  a  sum  of  money  amounting  to 
$1,469,  which  had  been  deposited  in  the  Bank  for  Sav- 
ings in  1827,  by  one  Jacob  Kniffei- ;  and  in  this  action 
these  severnl  claimants,  and  also  Micljael  A.  Gearon, 
the  attorney  of  one  of  them,  named  Lancaster,  were 
made  defendants.  This  Lancaster  had  been  appointed 
administrator  of  Kniffer's  estate,  and  the  money  had 
been  paid  over  to  Michael  A.  Gearon,  his  attorney,  and 
was  in  tlie  possession  of  Gearon.  A  motion  in  this  ac- 
tion for  the  appointment  of  a  receiver  was  made  and 
granted  on  December  27,  1882,  and  an  order  was  also 
made  requiring  Michael  A.  Gearon  to  pay  the  money 
into  the  hands  of  the  receiver  within  five  daj'-s.  Dilli- 
culty  was  experienced  in  making  service  of  this  order 
on  Michael  A.  Gearon.  At  last,  service  was  made  on 
a  person  then  sup[)osed  to  be  Michael  A.  Gearon,  and 
the  mont^y  not  having  been  paid  into  the  hands  of  the 
receiver,  in  obedience  to  this  order,  a  warrant  of  attach- 
ment was  issued  directing  the  sheriff  to  attach  tlie  per- 
son of  said  Michael  A.  Gearon,  and  to  i>roduce  him  be- 
fore the  court.  The  sheriff's  officer  having  charge  of 
(he  execdtiou  of  this  atiachn\ent,  applied  to  the  attor- 
neys of  the  Bank  for  Savings,  the  plaintiffs  in  that 
action,  fo;-  instructions,  and  they  sent  with  him  one  of 
their  cleiks  to  an  office  in  Pine  street  in  this  cit}', 
w^here  the  sheriff's  officer,  acting  under  the  instructions 
of  this  clerk,  arrested  the  plaintiff  in  the  present  ac- 
tion, being  informed  by  said  clerk  that  the  person  so 
arrested  was  Michael  A.  Gearon,  and  plaintiff  was  held 

Vol.  Y1.— 14 


210  CIVIL    PROCEDURE    REPORTS. 

: . ».    I 

Gcaron  v.  Bank  fur  Savings. 


in  custody  by  the  slieriiT  all  night  and  until  tha  next 
morning,  when  he  was  discharged,  on  proof  that  he 
was  not  Michael  A.  Gearon,  the  [jerson  n:imed  in  the 
attachment,  but  his  brother,  Miles  Gearon,  the  jdaint- 
iff  in  the  present  action. 

There  w^as  no  evidence  of  i\ny  special  authority, 
either  express  or  im[)lied,  from  the  Bank  for  Savings, 
the  plaintiff  in  that  action,  to  their  attorne}",  or  to  the 
sheriff,  to  arrest  Miles  Gearon  ;  nor  was  there  any  sub- 
seqnent  ratification  by  the  bank,  of  the  act  of  the  slier- 
iff,  or  of  their  attorneys,  after  knowledge  of  that  event. 

The  trial  judge  dismissed  the  plaintiff's  complaint 
in  the  present  action,  on  the  ground  that  there  had 
been  no  proof  of  any  authoriry  fiom  the  Bank  U>v 
Savings,  the  jjresent  defendant,  to  airest  Miles  Geaion 
the  present  plaintiff  ;  and  the  question  now  to  be  dis- 
cussed, is  whether,  in  the  absence  of  snch  jjicmjI",  the 
present  defendant  can  be  held  responsible  for  the  act 
of  their  attorneys  in  instructing  the  sheiiff  to  arrest 
the  plain.'iff  Miles  Gearon,  the  order  of  attachment 
having  directed  that  officer  to  arrest  Michael  A.  Geaion. 

The  case  of  Guiileanme  v.  Rowe  (48  Sirper.  CL  179), 
although  not  in  all  its  featutes  resembling  the  case  at 
bar,  yet  contains  a  valuable  statement  of  the  rules  of 
law  applicable  to  cases  of  this  kind.  The  attorneys  of 
the  defendants  there,  in  an  action  bronght  by  them 
against  Guilleaume,  caused  to  be  issued,  without  any 
authority  of  law,  an  execution  agaiiist  his  person,  and 
under  that  execuiion  Guilleaume  was  arrested  and 
held  in  custody.  He  brought  an  aciion  for  false  im- 
prisonment against  the  peisons  who  had  enjiiloyed  the 
attorneys.  The  learned  trial  judge  dismissed  the  com- 
plaint on  the  ground  that,  conceding  tlie  exectution 
against  Guilleaume  to  be  void  for  want  of  jurisdiction, 
there  was  no  evidencce  showing  that  the  defendants 
authorized  the  iiisue  of  the  execution,  or  the  arrest  of 
the  plaintiff  Guilleaume. 


fTVIL    PROCEDURE    -REPORTS.     ,         211 

Gearon  v.  Bunk  for  Savings. 

The  court  at  general  terra  held  tliat  the  case  should 
have  gone  to  the  jury,  and  ordered  a  new  trial,  on  the 
ground  that  "the  evidence  established  that  the  attor- 
neys who  issued,  the  execution  against  the  person  of 
Guilleaume,  had  acted  as  the  attorneys  of  the  defend- 
ants all  through  the  litigation,  before  and  after  Judg- 
ment, and  that  that  was  sufficient  to  make  them^rma 
fncie  the  agents  of  the  defendants;  for  unless  re- 
stricted, the  attorney  had  plenary  power  in  the  prose- 
cution of  the  suit  to  judgment  and  execution,  and  in 
these  respects  his  acts  bind  and  conclude  his  client." 
The  court  further  says,  ''that  in  such  a  case,  the  au- 
thority maj'^  be  deduced  from  the  nature  of  the  em- 
ployment, which  is  to  collect  the  claim  by  legal  pro- 
cess. ...  As  a  general  rule,  a  princii)al  is  liable  for 
such  wrong  of  his  agent  as  is  committed  in  the  course 
of  his  employment,  as  for  the  benefit  of  his  principal, 
and  this,  although  no  express  command  or  privity  be 
84iown."  . 

In  that  case,  this  familiar  rule  of  law,  that  the  prin- 
cipal is  responsible  for  the  act  of  his  agent  acting 
within  the  scope  of  his  authority,  was  properly  applied, 
for  the  attorneys  were  employed  to  bring  suit  against 
Gnilleaume,  and  the  wrong  done  him  by  his  unlaw- 
ful arrest  was  done  in  the  course  of  that  employment, 
and  was  within  the  attorney's  plenary  ]X)wer  in  the 
prosecution  of  that  suit.  But  the  court,  in  its  opinion, 
goes  farther,  and  describes  the  circumstances,  in  which 
the  act  of  the  attorney  under  the  plenary  power  to 
conduct  the  suit,  would  not  bind  the  client.  "It  is 
only,"  says  the  court,  "when,  after  having  issued 
execution,  the  attorney  undertakes  to  give  special 
directions  for  its  enforcement  in  a  manner  not  war- 
ranted by  the  language  of  the  writ,  and  when  the  offi- 
cer may  justly  decline  to  take  the  responsibility,  in  the 
absence  of  indemnity,  that  the  client  can  be  held  only 
on  proof  of  special  authority  to  the  agent,  express  or 


;>12  CIVIL    PROCEDURE    REPORTS. 

Gearou  v.  Bank  fcr  Savings. 

implied,  or  of  subsequent  ratification,  with  knowledge 
of  the  facts."  In  these  terms,  the  court  describes,  as 
I  think,  the  state  of  facts  in  the  case  at  bar,  supplies 
the  true  test  of  the  responsibility  of  ihe  client  for  tlie 
act  of  his  attorney,  and  marks  out  t^ie  limits  wiihiu 
which  the  plenary  power  of  the  ai.urney,  under  his 
ordinary  retainer,  is  confined. 

In  the  case  at  bar,  the  a<  tornej'^s  were  employed  by 
the  Bank  for  Savings  to  bring  suit  against  Michael  A. 
Gearon.  If,  in  the  course  of  that  employment,  they 
arrested  Michael  A.  Gearon,  and  ariested  him  wrong- 
fully, that  act  would  Imve  been  within  the  course  of 
their  employment,  and  their  clients  would  have  been 
responsible.  Poucher  v.  Blancliard,  8G  N.  Y.  2G:J. 
But  if  they  had  brought  suit,  not  against  Michael  A. 
Gearon,  but  against  Miles  Gearon,  and  caused  Miles 
Gearon  to  be  arrested,,  these  acts  would  have  been  out- 
side their  employment,  which  was  only  to  sue  Michael 
A.  Gearon,  and  their  clients  (the  Bank  for  Savings) 
would  not  have  been  responsiijle.  So  also,  if  in  the 
action  properly  brought  by  them  against  Michael  A. 
Gearon,  they  had  caused  a  writ  to  be  issued  against, 
Miles  Gearon  by  name,  and  caused  him  to  be  unlaw- 
fully arrested,  that-  act  would  have  been  outside  tlie 
course  of  their  employment,  and  their  clit-nts  would 
not  Jiave  been  resi-onsible,  because  their  clients  had 
never  employed  them  to  molest  Miles  Gearon  in  any 
way. 

In  the  case  at  bar,  they  <'au.sed  an  attachment  issued, 
by  the  court  U>  take  the  pnrson  of  Mi(;hael  A.  G^^ai'ou 
robe  unlawfully  executed  by  taking  the  i;e)son  of 
Miles  Gearon.  That  was,  in  my  opinion,  an  act  also 
outside  the  limits  of  their  employment,  and  for  which 
their  clients  were  not  lesponsible. 

Indeed,  on  the  issue  of  the  attachment  and  its  de- 
livery to  the  sherilT  for  execution,  the  emi)loyment  of 
the  attorneys,   as   to   that  attachment,   ceased.     They 


CIVIL     PllOCEDURE    REPORTS.  213 

Gearoii  o.  Bink  for  Saviii<;s. 

had  done  nil  their  duty  in  that  matter.  It  was  no  part 
of  their  duty  to  instruct  the  sheriff  how  the  attacli- 
ment  should  be  executed.  That  was  the  sheriff's 
duty,  not  theirs.  With  the  writ  of  the  conit  in  his 
hands,  directing  him  to  arrest  Michael  A.  Gearon.  he 
was  bound,  in  the  cotiise  of  his  eni[)l()yment  as  sher- 
iff", to  look  to  it  that  he  arrested  Miciiael  A.  GearoM, 
and  no  one  else,  under  that  writ.  He  was  under  no 
obligation  to  obey  the  orders  of  the  attorneys  for  the 
plaintiff  in  that  action  as  to  that  writ,  but  only  the 
orders  oC  the  court ;  and  if  he  arrested  a  wrong  man, 
he  was  responsible,  and  the  fact  that  the  attorneys  for 
the  plaintiff  in  that  action  had  told  him  to  arrest  a 
man  other  than  Michael  A.  Gearon,  would  be  no  justi- 
fication. 

In  my  oi)inion,  the  case  is  one  precisely  similar  to 
that  described  in  the  latter  part  of  the  opinion  of  this 
court  in  Giiilleaume  ??.  Rowe  {supra).  Here,  tlie  at- 
torneys of  the  Savings  Bank,  after  having  issued  the 
writ,  undertook  to  give  special  directions  to  the,  sher- 
iff for  its  enforcement,  in  a  manner  not  warranted  by 
the  language  of  the  writ,  and  to  enforce  it  in  such  a 
manner  that  the  sheriff  would  have  been  justified  in 
declining  to  take  the  responsibility  in  the  absence  of 
indemnity  ;  and  heie,  as  in  the  case  supposed  in  the 
opinion  in  Guilleaume  v.  Rowe,  the  client  (the  Savings 
Bank),  could  be  held  onl^Mipon  proof  of  special  aa- 
tliority  to  their  attorneys,  express  or  implied,  or  of 
subsequent  ratification.  There  is,  in  the  case  at  bar, 
no  evidence  whatever  of  such  special  authority  orrati- 
iication. 

An  analogy  exists  between  oases  of  unlawful  seiz- 
ures of  goods  under  process,  and  unlawful  arrests  of 
the  ])erson.  In  Welsh  ».  Cochran  {<oi  N.  Y.  182),  the 
])laintiff  sued  for  an  alleged  unlawful  seiziire  and  con- 
version of  his  property.  It  was  seized  under  a  war- 
rant issued  in  bankruptcy  proceedings,  and  directing 


214  CIVIL     PROCEDURE    REPORTS; 

Gearon  v.  Bank  for  Savings. 

the  takiiii?  of  goods  belonging  to  persons  other  tlian 
the  plainrifT.  The  defendants  were  the  petitioning 
creditors,  and  the  warrant  was  issued  at  their  in- 
stance, and  the  marshal  acted  under  the  instructions 
of  their  attorneys  in  making  the  seizure.  The  trial 
judge  directed  a  verdict  for  the  plaintiff.  The  court 
of  appeals  reversed  the  judgment,  and  ordered  a  new 
trial.  I  find  in  the  opinion  of  that  court  the  following 
expressions,  which  apply  to  the  case  at  bar:  "The 
warrant  issued  at  the  instance  of  the  defendants  only 
authorized  the  seizure  of  the  goods  of  the  bankiupt 
named  therein,  and  not  goods  in  possession  of  the 
j)laintiff.  The  defendants  were  not  present  at  the 
taking,  and  did  not  in  pei-son,  direct  or  interfere  with 
the  peisons  committing  ihe  trespass  on  the  plaintiff. 
They  may  have  pot  the  officers  in  motion,  but  the  au- 
thority from  defendants  which  the  law  would  imply, 
was  only  co- extensive  with  that  conferred  by  the  war- 
rant, and  to  do  only  lawful  acts  pursuant  to  the  war- 
rant. %The  law  will  not   presume  an  authority  from 

the  defendants   to  do  an  unlawlul  act The 

presence  of  the  attorney  f(>r  the  defendants  at  the 
seizure  of  the  goods,  and  his  directions  to  the  officers, 
did  not  make  the  defendants  liable  for  the  tortious 
act.  In  the  absence  of  proof  of  special  aitthmily  to 
an  attorne}',  his  acts  in  directing  the  levy  on,  oi-  the 
taking  of  goods  on  process,  are  in  excess  of  his  gvu'  r.il 
powers  as  an  attorney,  and  do  not  subject  his  cliciU 
to  liahility." 

Recent  E!igll>h  decisions  exhibit  a  similar  fentlency 
to  the  restriction  of  the«implied  authority  of  iht^  attor- 
ney to  impose  Ii;:biliry  on  the  client.  The  client  is  no!; 
held  liable  for  a  fiandulent  defense  [Mit  in  h}'  liis  attor 
iiey.  AVilliams  v.  Preston,  47  L.  T.  Jlep.  N.  S.  ^O."). 
The  client  is  not  liable  for  the  act  of  his  attorney  in 
directing  the  sheriff  on  what  goods  to  levy.  Smith  v. 
Keal,  40  L.  T.  Rep.  N.  S.  770. 


CIVIL  :  PROCEDURE    REPORTS.  215 


Gearon  v.  Bank,  for  Savings. 


The  cases  cited  by  the  learned  counsel  for  the  plaint- 
iff, in  his  brief,  do  not,  in  my  opinion,  give  any  real  or 
effeclutil  snpport  to  the  plaintiff's  claim  in  this  action, 
and  in  none  of  them  are  the  facts  sinjilar  to  those  in 
the  case  at  bar. 

Heie  file  action  of  the  attorneys  of  the  B.nik  for  Sav- 
ings, in  directing  the  sheriff  to  arrest  Miles  Gearon, 
the  plaintiff  in  this  action,  avjis  onlside  the?  scope  of 
their  employment,  and  ontside  of  thegnnei-nl  anthority 
presumed  to  have  been  conferred  on  them  by  tjie 
defendants.  Their  directing  the  arrest  of  a  man,  olher 
thnn  the  man  named  in  the  order  of  attachment,  was 
wholly  unlawful,  and  defendants  cannot  be  presumed 
to  have  authorized  an  unlawful  act.  The  presumed 
lawful  authority  of  the  attorneys  of  the  Bank  for  Sav- 
ings, as  to  the  order  of  attachment,  was  at  an  end  the 
moment  it  uas  delivered  to  the  sheriff  for  execution. 
The  sheriff's  authority  and  his  functions  then  began. 
They  had  no  right  todiiecthim  in  the  execution  of  the 
writ,  and  he  was  not  under  their  control  as  to  the 
manner  of  (executing  it.  In  the  execution  of  his  official 
duty,  he  acted  at  his  peril  ;  and  their  direction  that  he 
should  arrest  the  wrong  man  would  be  neither  justifi- 
cation nor  protection  to  him. 

The  facts,  as  they  appeared  in  the  evidence  in  this 
case,  weie  clear,  and  no  difference  of  opinion  depending 
on  different  deductions  or  inferences  could  arise, 
requiring  the  decision  of  the  jury. 

The  burden  of  proving  special  instructions  from 
the  Bank  of  Savings,  the  defendants  here,  to  their 
attorneys,  or  to  the  sheriff,  to  anest  the  phiintiff,  was 
on  the  plaintiff,  and  no  such  proof  was  given.  The 
dismissal  of  the  complaint  was,  therefore,  proper. 

The  judgment  ai)pealed  from  should  be  affirmed, 
with  costs. 


Feeedman,  J.,  concurred. 


21«  CIVIL    PROCEDURE     REPORTS. 

Syracuse  Sjivings  Bank  ».  Burton. 


SYRACUSE  SAVINGS  BANK  v.  BURTON,  et  al. 

Supreme  Court,  Utica  County  Special  Term, 
July,  1884. 

§§  438,  439. 
Infant. — Service  of  summons  on,  Vy  publication. — Estoppel. 

Section  438  of  the  Code  of  Civil  Procedure,  whicli  provides  for  the 
service  of  tlie  siinimoiis  in  an  action  ii|X)n  a  non-resident,  or  wlicro 
the  residence  of  llie  defendant  is  unknown  to  the  plaintiff,  is  equally 
applicable  to  an  infant  as  to  an  adult. [•] 

For  the  purpose  of  determining^  the  place  of  residence  of  an  infant 
under  the  provisions  of  the  Code  of  Civil  l^rocedurc,  allowinfr  service 
of  the  summons  in  an  action  by  ])ubli(;ati(iii,  that  of  tlx;  motlier  hav- 
ing the  care,  custody  and  control  of  l lie  child  must  be  regarded  as 
that  of  the  child. [»J 

The  summons  in  an  action  must  be  served  upon  an  infant  defendant  in 
one  of  the  modes  provided  by  statute,  in  oider  to  confer  upon  llio 
court  jurisdiction  of  the  person,  and  f^ive  it  autlioriiy  to  a|)point  a 
guardisin  ad  litem  to  enai>lo  the  defendant  to  appear  and  defeml  the 
action. [■*]  When  the  service;  h;is  been  in  frict  made,  in  a  manner 
provided  by  statute,  and  the  infjint  lias  appeared  and  answered,  by 
which  material  issues  have  l>een  made,  and  tliey  have  been  tried  and 
determined  by  a  court  of  comix^tent  juri-sdiction,  it  is  too  late  to 
challenge  the  truth  of  the  aflidnvit  <'onferriiig  jurisdiction  upon  tlie 
court  or  of  the  infant's  own  sworn  statement  aliirniing  the  truth  of 
such  affidavit. ['] 

Where  an  order  for  the  service  of  the  summons  in  an  action  upon 
infant  defendant  by  public;itiou  was  made  upon  a  comphiint  show- 
ing a  good  cause  ol  aciion  ngainst  sucli  defendants,  >uid  jin  »  fhdavic 
alleging  that  tiie  infants  resided  •' with  their  luo  her  in  New  Hedfnrd 
in  the  state  of  IVbi-sachusetts,"  and  were  then  there  :  lleb!,  that 
purchasers  of  properly  sold  under  a  judgnirnt  recovered  therein 
should  not  be  excn.'^e^l  from  taking  title,  on  the  groun<l  that  f)ne  of 
the  infants  ko  set  ved  who  had  appeared,  had  a  guardian  ad  lilet!% 
appointed  and  defended  the  action,  was  at  the  tigie  of  the  service 
temporarily  within  the  state. ['J 

{Decided  August  2,  1884.) 


CIVIL    PKOCEDURE    REPORTS.  217 

Syracuse;  Savings  Bank  v.  Burton. 

Motion  by  the  plaintiff  for  nn  order  directing 
Thomas  Lnne  to  coui])lete  the  purchase  made  by  him 
of  certain  hinds  bid  off  by  liirn  on  a  sale  thereof  upon 
a  judgment  of  foreclosure,  entered  herein,  to  accept  a 
deed,  pay  purchase  money,  &c. 

It  appears  that  a  mortgage  was  duly  executed  and 
delivered  by  Henry  B.  Burton  and  Cornelia  H.,  his  wife, 
to  the  plaintiff'  bearing  date  on  January  ]1,  1871,  given 
to  secure  the  i)ayment  of  a  certain  sum  of  money  as 
therein  provided. 

Default  having  been  made  in  the  payment,  this  ac- 
tion was  commenced  to  foreclose  the  mortgage.  The 
following  among  others  were  made  defendants  therein  : 
Henry  B.  Burton,  Cornelia  H.  Burton,  his  wife,  Cor- 
nelia H.  Burton,  as  trustee  of  Anna  G.  Burton,  Grace 
Burton  and  Burr  Burton  ;  Anna  G.  Burton,  Grace  Bur- 
ton and  Burr.  Burton.  The  action  culminated  in  a 
judgment  of  foreclosure  and  a  sale  of  the  mortgage 
premises  by  virtue  thereof  by  the  sheriff  of  Onondaga 
county.  Upon  the  sale  Thomas  Lane  became  the  pur- 
chaser for  the  sum  of  $3,960,  that  being  the  highest 
sum  bid  and  he  being  the  highest  bidder.  Lane  refuses 
to  complete  the  sale  and  ]iay  the  amount  bid  by  him. 
The  principal  gr(>und  for  !>uch  lefusal  being  that  the 
defendant,  Anna  G.. Burton,  at  the  time  of  the  com- 
mencement of  this  action,  an  infant  of  more  than  four- 
teen years  of  age,  w-as  not  pioperly  served  with  the 
summons  herein,  and  that  the  courts  acquired  no  juris- 
diction of  her  person  and  therefore  the  judgment  is 
not  conclusive  against  her,  and  because  thereof  the  title 
is  defective.  The  plaintiff  claimed  that  Anna  G.  Bur- 
ton, was  at  the  time  of  the  commencement  of  this  ac- 
tion a  resident  of  New  Bedford  in  the  state  of  Massa- 
chusetts and  that  personal  service  of  the  summons  could 
not  be  made  upon  her,  and  upon  the  presentation  of  an 
affidavit  setting  forth  facts  hereinafter  stated,  together 


218  CIVIL    PROCEDURE    REPORTS. 

Syracuse  Savings  Bank  v.  Jiurton. 

with  ibe  verified  complaint  to  a  justice  of  this  court,  an 
order  was  made  for  the  service  of  the  summons  upon 
said  Anna  G.  Burton,  by  publication.  Such  service  was 
made  before  the  time  lor  answering  exi)ired,  on  her 
Ijetition  duly  verilied,  she  being  sixteen  years  of  age, 
in  which  she  states  her  place  of  residence  to  be  with 
her  mother,  Cornelia  H.  Burton,  at  New  Bt-dford  in  the 
state  of  Massachusetts.  A  guardian  ad  liieni  was  duly 
appointed  for  her  in  the  action,  and  answer  interposed 
by  him  presenting  the  material  issues  for  trial  the  same 
were  tried  by  this  court,  judgment  ordered  for  plaint- 
iff and  subsequently  entered. 

Charles  G.  Baldwin  and  Lewis  Marshall^  for  the 
motion. 

/.  Page  3funroe,  for  the  purchaser,  opposed. 

Kennedy,  J. — The  Code  of  Civil  Procedure,  section 
438,  provides  that  an  order  directing  the  service  of  a 
summons  upon  a  defendant  without  the  state  oj  by 
publication  may  be  made  in  either  of  the  following 
cases. 

First.  When  the  defendant,  being  anatuial  person, 
is  not  a  resident  of  the  state,  or  when  after  diligent 
inquiry  the  defendant  remains  unknown  to  the  i)laint- 
ilf,  or  the  plaintiff  is  unable  to  ascertain  whether  the 
defendant  is  or  is  not  a  resident  of  the  state.  The 
remaining  subdivisions  of  said  section  are  unini- 
[']  portant  as  bearing  upon  the  question,  except  as 
reference  is  hereinafter  made  to  subdivision  5. 
The  provisions  above  quoted  is  equally  ai)i)licable  to  an 
infant  as  an  adult  defendant.  Wheeler  case,  t)0  N.  T. 
607.  The  judgment-roll  herein  shows  that  on  Ai)ril  10, 
18H3,  a  verified  complaint  showing  the  existence  of  a 
sufficient  cause  of  action  against  the  said  inf:int,  to- 
gether with  an  affidavit  containing  the  following  alle- 


CIVIL    PROCEDURE    REPORTS.  219 


Syracuse  Savings  Bank  v.  Burton. 


gation  of  the  affiant,  that  is  to  say,  "  That  the  defend- 
ants Anna  G.  Burton,  Grace  Burton  and  Burr  Burton, 
are  infjints  and  children  of  Henry  B.  Burton  and  Cor- 
nelia H.  Burton,  and  reside  wiih  their  mother  in  New 
Bedford  in  the  state  of  Massacliusetts  and  are  now 
there,  and  tliat  the  plaintiff  will  be  unable  to  make 
personal  service  upon  them,"  ^^vas  presented  to  a 
justice  of  this  court  and  an  urdt-r  that  the  summons  be 
served  by  publication  on  said  Anna  G.  Burton  asked 
for,  which  was  granted,  and  the  service  of  the  sum- 
mons thereafter  made  as  required  by  said  order  and  as 
in  like  cases  provided  by  statute.  The  papers  thus 
presented  (§  439  Code)  and  acted  upon  confer  jurisdic- 
tion upon  the  officer  to  make  the  order  and  it  could 
not  be  avoided  except  by  being  vacated  or  set  aside 
in  proceedings  institutt-d  for  that  jmrpose.  After  the 
summons  by  publication  hnd  been  commenced  and 
before  the  time  for  appearance  and  answer  had  ex- 
pired the  said  Anna  G.  Burton  presented  her  petition, 
she  being  then  16  years  of  age,  to  a  jjroper  officer  ask- 
ing for  the  appointment  of  a  guardian  ad  lUeiii  for  her 
in  the  action,  in  which  petition  verified  by  her,  she 
stated  lier  residence  to  be  New  Bedford  in  the  state  of 
Massachusetts,  and  that  "the  service  of  the  summons 
herein  was  being  made  upon  her  by  publication,"  and 
such  guardian  was  appointed.  By  the  appointment 
of  guaidian  ad  Litem  for  her,  the  ans>ver  interposed  in 
her  behalf,  the  trial  of  the  issues  made  thereby,  and 
the  judgment  of  the  court  made  thereon,  the  said  in- 
fant has  had  her  day  in  court  and  unless  imperatively 
demanded  she  should  not  at  any  future  time  be  })er- 
mitted  to  question  the  verity  of  the  record,  nor  should 
the  integrity  of  the  same  be  subject  to  impeachment 
by  her.  It  is  not  questioned  but  that  Anna  G.  Bur- 
ton was,  at  the  time  the  service  was  made,  in  the  care 
and  custody  of  her  mother  and  that  her  mother  was  a 
non-resident  of   the   state.      The   most   that   can    be 


220  CIVIL     PROCEDURK     REPOR'I'S. 


Sviiicuse  Siivititts  Bank  v.  Burton. 


ur^ed  liy  the  purcluiser  is  flint  the  said    Aruia  was  at 
that  tinie  temporarily  stayini;  in  the  cit}'  of  New  York 
and  was  away  I'loin  her  mother.     This  is  assumed  as 
(rue,  although  the  statement  in  the  affichivit  real 
[']     in  opposition  to  (he  motion,  is  alone  upon  infor- 
mation and  belief,  and  does  not  prove  (he  alleged 
facts.     Conceding   the   fact,    however,    as   claimed,  it 
does  not  in  any  manner  impeach  (he  regularity  of  the 
service  as  made.     For  the  purpose  of  determining  the 
infant's  place  of  residence  under  the  provisions  of 
[']     this  statute,  I  am  clearh'^  of  the  opinon   that   that 
of  her  mother  having  the  <;are,  (;ustody  and  con- 
trol of  her  infant  child,  must  be  regarded  as   that  of 
the  child.     If  I  am  light  in  this,  then  the  verity  of  the 
judgmen(-roli  cannot  be  impeached  either  collaterally 
or  by  direct  proceedings  for  that  j)ur[)ose.     Belmont 
V.  Cornell,  82  N.   Y.  2.')(5. 

The  summons  must  be  served  on  infant  defend- 
ants, in  one  of  the  modes  provided  by  the  statute 
[*]  in  order  to  confer  up(m  (he  court  jiiiisdicdon  of 
the  person  and  give  it  authority  to  appoint  a 
guardian  ad  litem  to  enable  (he  defendant  to  appear 
and  defend  the  action.  Jngersoll  ??.  Mangain,  84  N.  Y. 
623. 

When  the  service  hiis  b^en  in  fact  made  in  a  manner 
provided  by  statute  and  the  infant  has  appeared  and 
answered,  by  which  material  issues  have  been  made, 
and  (he\'^  have  been  tried  and  determined  by  a  court 
of  competent  jurisdic(ion,  it  is  too  late  to  chal- 
[*J  lenge  or  void  the  proceedings  afterwards,  by  an 
attempt  to  falsify  the  truth  of  the  affidavit  con- 
ferring jurisdiction  upon  the  court,  or  of  her  own 
sworn  statement  aflTnniing  (he  (ruih  of  said  atTidavit. 
The  petition  of  the  infant  for  (he  appointment  of  the 
guardian  ad  litem  forms  a  jiart  of  the  judgment  roll. 
It  is  referred  to  by  her.  and  in  it  she  states,  that  she 
is  a  resident  of  New  Bedford,  in  the  state  of  Massa- 


CIVIL    PROCEDURE    REPORTS.  221 

Syracuse  Savings  Bank  v.  Burton. 

chusetts,  "  and  ihat  the  summons  is  being  served  upon 
her  by  publication." 

Under  the  evidence  in  this  case  the  judgment  must 
be  regarded  as  conclusive.  The  claim  therefore  of  tlie 
purchaser  is  not  available  to  him  to  relieve  him  from 
his  contract,  as  tne  title  he  acquires  cannot  be  im- 
peached upon  the  ground  urged  by  him.  It  is  not  im- 
portant on  this  motion  to  inquire  what  are  the  exact 
interests  of  Cornelia  H.  Bnrton  under  the  deed  from 
Emily  Howland.  It  is  sufficient  to  say  that  under 
that  conveyance  the  defendant  Anna  G.  Burton,  had 
such  an  interest  in  the  mortgaged  premises  as  made 
her  one  necessary  party  defendant,  within  the  provis- 
ions of  the  5th.  subdivision  of  section  438  of  the  Code 
above  cited,  and  that  the  court  had  jurisdiction. of  the 
subject  matter  thereof.  Whatever  interests  Henry, B. 
Burton  had  in  the  premises  as  guardian  in  socnge  for 
the  snid  Anna  G.,  was  cut  off  by  the  snle  upon  the 
judgment.  The  allegations  in  the  affidavit  of  the  pur- 
chaser as  to  certain  conversations  had  by  him  between 
the  individuals  who  were  ofncers  of  the  plaintiff  u[)on 
the  subject  of  the  plaintiff's  lending  such  ]iuichaser 
$3,000  are  not  sufficient  to  exclude  him  from  the  per- 
formance of  his  contract.  It  follows  than  an  order 
should  be  entered  requiring  the  purchaser  Thomas 
Lane  to  complete  the  purrhasn  made  by  him  on  the 
sale  of  the  premises  upon  said  judgment  of  foi-eclosure 
by  paying  to  the  sheriff  of  Onondaga  county  who  made 
such  sale,  the  sum  bid  by  him,  that  is  $3,9C0,  in  the 
manner  required  by  the  terms  of  said  sale  upon  re- 
ceiving a  deed  in  the  usnal  I'oim,  and  executed  by 
said  sheriff  to  hhn  for  said  ])iemises.  And  in  case  of 
the  inability  of  said  Thomas  Lane  to  complete  said 
purchase  by  him  then  the  sheriff  shall  resell  said  prem- 
ises upon  said  judgment  that  he  ])ay  the  costs  and  ex- 
penses of  such  re-sale  as  well  also  the  difference  be- 
tween the  price  said  premises  shall  sell  for  on  such 


222  CIVIL    PROCEDURE    REPORTS. 

Boyd  V.  N.  Y.  Central.  &c.  II.  U.  C. 

re-siile,  provided  said  price  shall  be  less  than  the  said 
sum  of  eS3,960  and  interest  thereon  and  the  amount 
hid  by  him.  Ten  dollars  costs  of  motion  together  with 
disbursements  to  be  paid  by  said  purchaser  Thomas 
Lane,  to  the  plaintiff.  Ualess  the  form  of  the  order  is 
agreed  npon  by  the  respective  attorneys,  the  same 
may  be  settled  before  me  at  my  chambers  on  one 
day's  notice. 


BOYD,    AS    Administrator,   etc.,   of    BOYD,   De- 
ceased, V.  THE  NEW  YORK  CENTRAL  AND 
HUDSON  RIVER  RxilLROAD  COMPANY. 

SuPEEME  Coukt,  Rensselaer  Circuit,  September, 

1884. 

•    ,  §§  1904,  3253. 

Extra  allowance. — Basis  of,  in  action  for  tausing  death. 

An  extra  allowance  in  an  action  to  recover  damages  for  causing  death, 
should  be  computed  upon  the  sum  awarded  by  the  jury  and  the 
interest  thereon,  from  the  date  of  the  death  of  the  deceased,  which 
the  Code  requn-es  tlie  ckrk  to  add  thereto. 

The  expression  "  the  sum  recovered,"  in  section  S253  of  the  Code  of 
Civil  Procedure,  which  provides  for  the  <,'raiiling  of  ndditional  al- 
lowances, includes  nnd  covers  all  damages  awarded  to  a  i)arly  and 
rLCovcred  by  liim  in  an  action,  wliether  compi  lied  l)y  a  jury,  a 
court  or  a  rt-ftree,  or  given  solely  by  statute  or  partly  dependent  ou 
both. 

{Decided  September,  1881.) 

Motion  by  plaintiff  for  an  additional  allowance  on 
his  recovery  herein. 

SuflBcient  facts  appear  in  the  opinion. 


CIVIL    PKOCEDUKE    REPORTS.  223 

Boyd  V.  N.  Y.  Central,  &c.  R.  R.  Co. 

Ji.  A.  Parmenter,  and  ^.  J.  Parmenter,  for  the 
motion. 


^.  L.  Fursman,  opposed. 

Westbrook,  J.— The  plaintiff  after  a  severe  con- 
test at  the  present  circuit  recovered  a  verdict  of  two 
thousand  dollars  in  the  above  entitled  cause. 

The  action  was  brought  under  section  1902  of 
*'The  Code  of  Civil  Procedure"  to  recover  compen- 
sation for  the  death  of  a  son. 

The  plaintiff  moved  for  an  extra  allowance  under 
section  32r)3,  and  asked  that  it  be  computed  upon  the 
sum  awarded  by  the  jury  with  the  interest  thereon 
added  from  the  date  of  the  decedent's  death  (January 
19,  1877),  which  interest  the  clerk  is  required  by  sec- 
tion 1904  to  "add  to  the  sum  awarded"  by  the  jury, 
*'and  include  it  in  the  judgment." 

The  defendant  conceded  the  case  to  bs  "a  difBcult 
and  extraordinary"  one  and  that  an  allowance  .was 
proper,  but  insisted  that  it  should  be  computed  upon 
the  amount  of  the  verdict  only. 

The  question  which  this  motion  presents  therefore 
is,  upon  what  shall  the  allowance  be  com'puted,  upon 
the  amount  of  the  Verdict  only,  or  upon  such  amount 
with  interest  added  from  the  date  of  the  deatli  ? 

The  language  of  the  section  (3256)  giving  the  allow- 
ance, and  which  is  applicable  to  this  case,  requires  it 
to  be  computed  "  vpon  the  sum  recoGcredP  The  claim 
of  the  plaintiff  was  that  "the  sum  recovered''''  is  the 
amount  of  the  damages  which  he  recovers  by  the 
action  ;  while  the  claim  of  the  defendant  is  that  the 
expression  only  refers  to  the  amount  awarded  by  the 
verdict. 

The  point  involved  has  not  been  directly  decided 
to  my  knowledge,  and  must  therefore  be  treated  as  an 
original  question. 


224  CP'IL    PROCEDLRE     REPORTS. 

Boyd  V.  N.  Y.  Central,  etc.  li.  li.  Co. 

In  an  action  of  this  chaiacter  wlien  the  plnintifl 
recovers,  the  jury,  the  court,  or  the  refei-ee  to  whom 
the  question  is  submitted,  mny  award  "such  a  sum 
not  exceeding  five  thousand  dollars"  as  they  or  he 
deem  or  "deems  to  be  a  fair  and  just  comjiensaliou 
for  the  pecuniary  injuries,  resulting  from  the  dece- 
dent's death,  to  the  person  or  persons,  for  whose  bone- 
fit  the  action  is  brought."  The  same  section  of  the 
Code  (1904),  from  which  the  quotation  has  just  been 
made,  further  provides  :  "  When  final  judgment  for 
the  plaintiff  is  rendered,  the  clerk  musl  add  to  the  sum 
so  awarded,  interest  thereupon  from  the  decedent's 
death,  and  include  it  in  the  judgment.  The  inqui- 
sition, verdict,  report,  or  decision  may  specify  the  day 
from  which  the  interest  is  to  be  computed  ;  if  it  omits 
so  to  do,  the  da 3'^  may  be  determined  by  the  clerk, 
upon  affidavits." 

From  the  section  of  the  Code  just  referred  to  it 
seems  reasonably  clear  that  "^  the  sum  recovered^''  in 
this  action  is  not  only  the  amount  of  the  verdict,  which 
represented  the  judgment  of  the  jury  as  to  what  would 
be  "a  fair  and  just  compensation  for  the  pecuniary 
injuries"  to  the  plaintiff  "resulting  from  the  dece- 
dent's death,"  but  also  the  interest  upon  such  amount 
from  the  date  of  the  death.  That  such  interest  is  re- 
quired by  express  statutory  enactment  to  be  added 
does  not  make  such  addition  anything  other  or  differ- 
ent than  a  part  of  "  the  sum  i-ecovered."  If  the  Code 
had  authorized  the  jury  to  make  the  interest  a  part  of 
the  verdict,  and  thiit  in  fnct  had  been  done,  the  point 
that  the  allowance  should  be  coiilined  to  the  jury's  es- 
timate of  the  "pecnniai-y  injuries"  resulting  from  the 
death  woidd  not  probably  have  been  made.  That  the 
Code  has  by  plain  words  made  the  interest  a  part  of 
"  the  sum  recovered"  and  has  not  left  its  allowance 
or  non-allowance  to  the  discretion  of  the  jury,  cannot 
alter  or  change  the  words  of  section  3253.     That  sec- 


CIVIL    PROCEDURE    REPORTS.  225 

Boyd  V.  N.  Y.  Central,  &c.  R.  R.  Co. 

tion  does  not  provide  that  the  allowance  shall  be  based 
upon  theamouritof  a  verdict,  a  decision  of  a  court, 
or  the  report  of  a  referee,  but  "upon  the  sum  re- 
covered." In  other  words,  ihe  allowance  shall  be  made 
upon  the  damages  which  are  awarded  to  the  party  by 
the  action.  These  damages  ma\'^  be  such  only  as  a 
jury,  a  court  or  a  referee  may  compute,  or  may  be 
given  solely  by  statute,  or  may  depend,  as  in  this 
case,  partly  on  both  ;  but  whether  given  in  either  of 
the  ways  mentioned,  so  long  as  they  represent  ^'I7ie 
sum  recovered,'*  that  sum,  and  no  other,  is  the  one 
upon  which  the  allowance  is  to  be  computed. 

The  order  in  this  case  will  be  that  the  allowance 
granted  shall  be  comi)uted  upon  the  verdict  with  the 
interest  added  from  tlie  date  of  the  decedent's  death. 
The  allowance  in  this  case  will  be  at  the  rate  of  live 
percent.,  because  that  rtite  in  this  particular  case  is 
not  too  n)uch.  If  the  basis  of  the  allowance  will  yield 
in  some  future  case  too  large  a  sum,  the  rate  is  in  the 
discretion  of  the  court.  The  only  point  now  decided 
is  that  the  exi)ression,  "  the  sum  recovered,"  used  in 
section  3253  of  the  Code  includes  and  covers  all  the 
damages  awarded  to  a  party,  and  recovered  by  him  in 
ML  a(  tion. 

Vou  VL— 16 


226  CIVIL    PROCEDURE    REPORTS. 


Goodwin  v.  Bunzl. 


GOODWIN,  KT  AL.,  Respondents,  v.  BUNZL,  et  al., 
Appellants. 

N.  Y.  Superior  Court,  General  Term,  May,  1884. 

§§  1328,  1329,  1335. 

Seplevin. —  Undertaking  on  appeal. —  When  sureties  will  "be  held  liable  on. 

Where  both  parties  request  tlic  dirocfion  of  a  verdict,  there  is  no 
question  of  fact  to  be  reviewed  b}'  llic  fippeliatc  court. 

Though  an  -andertaking  on  aiipcal  be  defect ivu  in  form,  and  not  suflB- 
cient  to  give  a  stay  of  proceedings,  yet  as  against  the  sureties  it 
may  be  supported  by  any  sufficient  consideration.  The  burden  of 
proving  this  is  upon  tlie  party  seeking  to  cliarge  the  sureties,  but  it 
may  be  sliown  by  circumstantial  evidence. 

Where  a  defective  undertaking  is  made  for  tiie  purpose  of  obtaining 
a  stay,  and  respondent  at  appellant's  request  witlidraws  liis  excep- 
tion thereto,  and  the  undertaking  is  approved  on  consent,  and  used 
to  obtain  a  stay,  and  respondent  relying  solely  on  it  does  not  issue 
execution,  the  sureties  will  be  held  liable  thereon,  especially  when 
it  does  not  appear  that  they  kuew  of  or  took  action  on  the  excep- 
tion to  the  undertaking. 

In  this  case,  where  the  judgment  in  replevin  ogainst  three  defend- 
ants, was  affirmed  as  to  two  defendants,  it  was  held^  that  there  was 
a  breach  of  the  condition  of  the  undertaking. 

(Decided  June  20,  1884.) 

Ap]:)eal  by  defendants  from  judgment  in  favor  of 
plain  ti(Ts. 

Action  against  defendants  as  sureties  on  an  under- 
taking on  appeal  in  an  action  of  replevin. 
The  facts  appear  in  the  opinion. 

31.  A.  liegensberr/er  and  Eoeritt  P.   Wheeler,  for 
appellants. 

By  sections  1328  and  1329  of    the  Code  of  Civil 


CIVIL    PROCEDURE    REPORTS.  22-7 

Goodwill  V.  Bunzl. 

Procedure,  an  nppenl  from  a  judgment  for  tlje  recovery 
of  a  chattel  is  not  stayed  until  the  appellant  gives  a 
written  undertaking  in  a  sum  fixed  by  the  court  below, 
that  the  appellants  will  obey  the  direction  of  the  ap- 
pellate court  upon  the  appeal.  No  directions  were 
made  by  the  appellate  court,  which  the  ap])ellants  re- 
fused to  obey.  And  if  it  were  otherwise,  these  sure- 
ties did  not  make  such  an  engagement. 

By  the  provision  of  section  1335  of  the  Code  of 
Civil  Procedure,  the  sureties  when  excepted  to,  must 
justify  on  oath  in  court,  and  the  appellants'  attorney 
must  serve  notice  of  the  allowance  of  the  undertaking 
on  the  exceptants,  and  the  failure  to  justify,  has  the 
same  effect  as  though  no  undertaking  had  been  given 

Kelly  &  McBae,  for  respondents. 

The  sureties  chose  and  executed  the  undertaking 
in  the  form  it  is,  intending  it  as  a  good  and  sufficient 
undeTtaking  for  the  purpose  of  staying  execution  ; 
that  it  was  considered  and  treated  by  all  parties  as 
fulfilling  that  purpose,  and  that  they  are  estopped 
from  denying  its  force  or  obligation.  Harrison  c.  Wil- 
kin, G2i\".  r.  412  ;  Hill  v.  Burke,  G2Id.  Ill  ;  Wheaton 
».  Fay,  62  Id.  275;  Coleman  v.  Bean,  3  Keyes,  94; 
Decker  v.  Judson,  16  JV.  Y.  439. 

There  is  no  force  in  the  contention  that  because  the 
sureties  did  not  formalh'justif}^  in  court,  that  they  are 
not  liable  on  their  undertaking.  This  was  waived  by 
plaintiffs'  counsel  at  the  express  request  of  defen- 
dant's counsel,  and,  therefore,  the  sureties  cannot  take 
advantage  of  it.     Ballard  v.  Ballard,  18  i\\  Y.  491. 

Sedgwick,  Ch.  J. — The  decision  of  this  appeal  must 
rest  solely  upon  the  determination  of  questions  of  law 
that  are  pertinent  to  exceptions  taken  upon  the  trial. 
There  was  no  request  to  go  to  the  jury  upon  an  issue 
of  fact.     Both  bides  asked  for  a  direction  of  a  verdict. 


228  CIVIL    PROCEDUUE    REPORTS. 

Goodwin  v.  Biiiizl. 

Although  the  defendants  excepted  to  the  direction 
that  was  made  in  favor  of  the  plainriff,  tliat  exception 
was  not  upon  the  ground  tiiat  tliere  was  a  question  of 
fact  for  the  jury,  because  the  defendants  contempo- 
raneously demanded  a  direction  in  tlieir  own  favor, 
which  implied  that  there  was  no  dispute  of  fact. 

What  has  been  said  is  to  be  a[)pli§d  to  the  main 
point  taken  by  the  defendants  as  to  whether  the  un- 
dertaking by  the  sureties  was  sup[)0!ted  by  any  legal 
consideration.  They  argued  that  t lie  undertalving  was 
not  in  the  form  prescribed  by  tlie  statute  as  tiie  one 
which,  when  executed  by  sufficient  sureti«'s.  gives  to 
the  appellant  in  the  action  in  which  the  undertaking 
may  be  given,  a  right  to  a  stay  of  proceedings  upon 
the  judgment.  It  may  be  assumed  that  this  i)rop()siti()n 
is  correct.  The  undertaking,  however,  mny  hs  sup- 
ported, as  any  contiact  may  be,  by  a  suilicient  con- 
sideration, which,  when  the  undertaking  is  not  indue 
form,  it  is  necessary  that  the  phiintiff  in  an  action  n{)on 
it  must  affirmatively  prove.  Accordingly,  the  defend- 
ants in  this  action,  upon  the  trial  took  the  position 
that  the  plaintiff  had  not  proved  any  consideration  for 
the  undertaking.  In  such  a  case  the  consideration 
may,  as  in- any  other  case,  be  an  inconvenience  suf- 
fered, or  a  forbearance  of  a  right  to  enforce  a  legal 
remedy,  by  a  promisee  at  tiie  reqnest  of  the  ])romisor. 
There  is  no  rule  of  law  that  requires  this  to  l)e  proved 
by  direct  testimony.  It  m;iy  be  shown  by  circiini.st:in- 
tial  testimony.  A  stay  of  prot^ecdings  upon  a  judg- 
ment on  request  is  a  sufficient  consideration.  Post  c. 
Doremus,  6P-.JV.  V.  n7C). 

In  the  pi-esent  case  the  surciins  knew  the  law  on 
the  subject  of  the  stay  of  ])j-oc('t'(lings  u;)o;i  jii(l;.;;mpnt3 
after  appeal,  or  were  presunn^d  to  know  it.  The  only 
l)urpose  for  which  they  could  have  made  and  olfered 
it,  was  to  se^ffre  to  their  principal  the  benefit  of  a  stay. 
The  want;  of  form  to  comply  with  the  statute  was,  it  is 


CIVIL    PROCEDURE    REPORTS.  229 

Goodwin  v.  Buiizl. 

to  be  presumed,  within  their  knowledge.  The  res[)ond- 
ents,  having  the  power  to  object  !o  the  undertaking 
and  to  secure  its  disapproval,  consented  that  it  might 
be  approved  as  it  was  ;  and  their  attoiiu^y  ns  a  witness 
on  the  present  trial,  testified  that  he  did  not  issue  any 
execution,  relying  on  the  undertaking.  All  these  facts 
and  the  necessary  implications  in  them,  tend  to  show 
a^stay  at  the  request  of  the  defendants.  And  if  they 
do  not  incontrovertibly  show  this,  they  would  prevent 
a  direction  for  the  defendant,  and  would  give  the  de- 
fendants the.  light  to  go  to  the  Jury  as  to  the  fact. 
This  right,  however,  was  not,  as  has  been  observed, 
claimed.  There  v. as  a  genei'al  objection  to  the  diiec- 
tion  for  the  i)laintifl",  without  calling  the  attention  of 
the  court  to  this  paiticnlar  fact,  in  any  other  way 
than  in  arguing  that  there  was  no  evidence  of  a  con- 
sideration. 

In  Post  «.  Doremus  {snpra\  the  court  showed  that 
the  plaintiff  in  that  case  did  not  accept  the  undertak- 
ing as  sufficient  to  secure  a  stay  of  pioceedings,  but 
only  sufficient  to  ])erfect  an  appeal.  In  the  piesent 
case,  the  facts  would  justify  a  finding  of  fact  that  the 
plaintiff  did  staj^  the  api>eal  in  consequence  of  the 
undertaking.  I  do  not  see  how  the  defendants  can 
claim  that  the  defect  in  form  of  the  undertaking  should 
signify  that  they  did  not  impliedly  request  a  stay  of 
proceedings.  There  was  no  other  object  of  an  under- 
taking than  a  stay  of  proceedings. 

I  am  of  the  o[)inion  that  the  ground  stated  by  the 
judge  below  of  ids  direction,  was  valid.  The  under- 
taking was  used  as  tiie  defendants  (it  is  to  be  inferred) 
intended  it  was  to  be  used,  in  being  presented  to  the 
judge  who  approved  it,  for  liis  determination  as  to 
whether  it  was  in  proper  form  and  with  sufficient  sure- 
ties to  give  tlie  appellants  in  that  case  a  right  to  a  stay. 
The  approval  was  a  judicial  determination  by  him  on 
the  subject,  and  all  the  parties  to  it  should  be  bound 


230  CIVIL    PROCEDURE    REPORTS. 

GoocVwiu  V.  BuDzl. 

by  it,  until  it  be  set  aside.  The  fact  that  the  sureties 
made  the  undertaking  and  deliveied.it,  is  sufficient 
evidence  that  the  approval  was  by  their  consent,  or 
rather  at  their  instance. 

Manning  v.  Gould  (90  N.  Y.  476),  it  is  argued,  is  an 
authority  that  these  defendants  are  not  bound  by  the 
undertaking,  because  they  were  excepted  to  and  did 
not  thereafter  justify.  To  mnke  the  cited  case  an  au- 
thority^ on  the  subject,  it  is  said  that  the  sureties  failed 
to  justify.  The  facts  do  not  show  that  there  was  any 
failure  on  the  part  of  tlie  defendants  to  justify.  Tiiey 
did  not  justify,  nor  was  it  shown  that  they  knew  there 
had  been  an  exception  to  them.  On  the  contrary,  at 
the  request  of  the  attorney  for  the  apjiellant  in  the 
former  action,  the  attorney  for  the  respondents  with- 
drew his  exception  and  consented  to  the  api>roval  of 
the  undertaking.  The  first  sentence  of  Judge  Tracy's 
opinion  in  Manning  v.  Gould  {supra),  shows  that  it 
implies  that  in  a  case  like  tlie  present  the  sureties  are 
liable.  Judge  Tkacy  said,  "The  question  is  whether 
the  sureties  on  an  undertaking  ^iven  on  apjxeal,  when 
excepted  to  and  they  fail  or  lefuse  to  justify,  and  jus- 
tification is  not  waived  by  the  respondent,  are  never- 
theless bound  by  the  conditions  of  i  heir  undertaking.** 
If  both  parties  f^tand  upon  the  exception  and  there  is 
a  failure  to  justify,  then  in  the  language  of  the  Code 
the  effect  is  the  same  as  if  no  undertaking  ]i;:(l 
been  given.  But  in  case  an  exception  is  withdiauu 
and  the  undertaking  is  ai)proved  by  consent,  the  case 
stands  as  if  there  had  been  n(j  exception,  esi)ecially 
Avhen  the  sureties  were  not  apprised  of  the  excei)!io!i 
and  did  not  in  any  way  act  upon  it. 

There  was  another  objection  :  that  the  condition  of 
the  undertaking  was  not  broken.  The  condition  was, 
'*  that  if  the  said  judgment  so  appealed  from  or  any 
part  thereof  be  affirmed  or  the  appeal  be  dismissed, 
the  said  appellants  will  pay  the  sum  recovered  or  di- 


CIVIL    PROCEDURE    REPORTS.  231 


Gi)othviii  t'.  Buuzl. 


rected  to  be  paid  by  tli::;  s:iid  jiiJp^tnear/'  The  judg- 
ment was  that  "the  plaintiff  i-ecover  from  tlie  defi^nd- 
ants,  the  possession  of  said  pioix-ity,  io-^x-ther  with 
said  $-19  damages  and  said  cos;ts,  oi-  if  jjussessioii  of 
said  property  is  not  delivered  to  pUiintifr,  (hen  that 
they  recover  the  said  value,  together  wiih  said  dam- 
ages and  costs,  making  in  all  the  sum  of  $1,075.87,  &c." 

The  action  in  which  the  judgment  was  obtained  was 
in  i'ei)levin  against  three  defendants.  Two  of  them 
were  paities  who  had  assigned  and  transferi'ed  the 
chattels  to  the  third,  and  the  chattels  were,  at  the 
time  of  the  action,  in  the  possession  of  the  third,  and 
remained  there  until  he  transferred  them  to  other  per- 
sons. The  judgment  was  affirmed  as  to  the  assignor, 
and  reversed  as  to  the  assignee.  A  new  trial  was  had, 
and  judgment  rendered  in  his.  favor.  The  judgment 
w^as  j'eall}"  joint  and  several  against  the  three,  and 
when  there  was  an  affirmance  as  to  the  assignors  the 
sureties  became  liable  ui)on  the  undertaking.  Seacord 
V.  Morgan,  3  ICcz/es,  68S.  It  does  not  follow  that  be- 
cause, in  fact,  the  possession  of  the  chattels  was  in  the 
third  defetidanf.  that  the  obligation  of  the  (wo,  under 
the  judgUK^nt  to  restore  them  to  the  plain  tills,  was 
affected.  lle[)levin  will  lie  although  the  defendant 
lias  parted  witli  (he  possession  of  the  ])roperty  and 
the  same  is  beyond  the  reach  of  the  process  of  the 
court,  so  that  in  no  event  can  a  return  of  the  property 
be  had,  either  in  virtue  of  the  claim  and  demand  of  the 
])laintilF  or  any  judgment  (hat  may  be  given  in  (he 
action.  Barrett  v.  Selling,  70  JV.  )'.  492,  citing  Nichols 
D.  Michael,  23  Jd.  2C4.  It  is  not  a  quesdon  here,  how 
in  such  a  case,  there  can  be  judgment  against  the  t.vo 
while  it  is  in  favor  of  (he  (bird.  Such  is  the  judgment, 
which  binds  all  i)ar(ies,  and  (hat  is  a  final  considera- 
tion, while  it  may  be  imagined,  how  the  I'esult  was 
competentl}^  reached. 

Certainly  it  appears   that   the  judgment   did  not 


232  CIV^IL    PROCEDURE    REPORTS. 

Seligmau  v.  Wiillach, 

require  the  defendants  unconditionally  to  pay  the 
amount  named,  but  only  if  possession  of  the  property  ' 
was  not  delivered  to  the  plaintiff.  In  the  present  case, 
it  was  proved  affirmatively  and  conclusively  that  the 
possession  had  not  been  delivered,  so  that  the  obliga- 
tion to  pay  the  amount  had  become  absolute. 

Seeing  no  reason  for  disturbing  the  judgment  ap- 
pealed from,  I  am  of  opinion  it  should  be  affirmed, 
with  costs. 

Tbuax,  J.,  concurred. 


SELIGMAN  ET  AL.  V.  WALLACE,  et  al. 

N.  Y.    Superior  Court,  Special    Term,   October, 

1884. 

§§  2435,  2436. 
Supplementary  proceedings. — Assignment  for  benefit  ofereditora. 

An  examination  in  supplementary  proceedings  of  a  debtor,  wlio  has 
made  an  assignment  for  tlic  bcnotit  of  creditors,  sliould  not  be  eon- 
fined  to  properly  acquired  since  tlie  assignment.  It  may  inchide 
an  inquiry  concerning  his  property,  whether  legal  or  equitable, 
including  pro[)erty  transferred  to  anotlier  with  the  apjiarent  intent 
to  hinder,  delay  or  <lefraud  creditors. 

{Decided  October  23,  1884.) 

Special  proceeding  for  examination  of  judgment 
debtor. 

The  facts  appear  in  the  opinion. 

Seligman  &  Seligmau,  for  plaintiffs. 

liicliard  JS.  Newcomhe^  for  defendants. 


CIVIL    PROCEDURE    REPORTS.  233 

Seligman  v.  Wallach. 

O'GoRMAN,  J. — Defond:mrs  being  examined  in  sup- 
I)lementary  proceedings  under  section  2435  of  the 
Code,  chum  that  the  examination  should  be  restricted 
to  questions  rehiring  to  property  acquired  since  the 
general  assignment  for  the  benefit  of  creditors.  In 
this  assignment  the  wife  of  one  of  the  defendants  and 
the  daughter  of  the  other  defendant  are  preferred  to 
amounts  reaching  in  the  aggregate  $82,000,  constitut- 
ing the  bulk  of  the  assets  of  the  defendants.  I  do  not 
think  that  such  a  restriction  would  be  proper.  The 
sections  of  the  Code  authorizing  the  examination  of  a 
judgment  debtor  provides  that  he  may  be  required  to 
attend  and  be  examined  "  concerning  his  property" 
(§§  2435,  2436).  The  attitude  of  the  parties  in  such 
cases  is  this  :  The  creditor  has  exhausted  the  ordinary 
remedies  and  means  to  collect  his  debt — by  judgment 
and  execution — neither  the  sheriff  nor  he  can  discover 
any  property  subject  to  levy  without  examination  ojE 
the  debtor  himself.  The  law  gives  the  creditor  the 
right  to  examine  the  debtor  "concerning  his  prop- 
erty," meaning  therebj^  such  property  as  could  not  be 
discovered,  and  which  has  been  overlooked  or  hidden 
or  put  beyond  the  reach  of  creditors.  It  is  an  inquis- 
itorial proceeding  and  was  meant  to  be  so. 

An  assignment  for  the  benefit  of  creditors,  so  called, 
is  too  frequently  an  expedient  of  dishonest  debtors 
and  in  order  to  hinder,  delay  and  defraud  cieditors, 
and  when  made  with  tliat  intention,  the  title  to  the 
property  does  not  vest  in  the  assignee,  but  is  still,  in 
equity,  the  property  of  the  debtor  and  subject  to  levy 
under  execution.  The  claim  that  the  mere  fact  of  the 
debtor's  having  made  a  general  assignment  of  his  prop- 
erty, stops  all  further  inquiry  on  the  part  of  the  cred- 
itor in  these  proceedings,  seems  to  me  untenable  and 
inconsistent  with  the  manifest  purpose  of  these  ])ro- 
ceedings.  Such  seems  to  be  the  opinion  of  the  court 
of  appeals  in  Lathrop  v.  Clapp  (40  N.  Y.  33).     In  Me- 


234  CIVIL    PROCEDURE    REPORTS. 

Seligmiin  v.  W:ill;icli. 

chanics'  and  Traders'  Bank  o.  Healy  (14  N.  Y.  Weekly 
Digest,  120),  the  creditor  was  allowed  to  show  by  ex- 
amination of  the  debtor  in  supplementary  proceedings 
that  a  purchase  of  the  debtor's  property  was  not  made 
in  good  faith.  Property  of  the  jadgment  debtor, 
which  had  become  vested  in  the  assignee  under  a  valid 
agreement,  cannot,  of  course,  be  reached  by  these  pro- 
ceedings. It  had  ceased  to  be  the  proi)erty  of  the 
debtor.  But  if  the  assignment  bears  on  irs  face,  or  in 
the  circumstances  of  its  execution,  any  of  the  ordinary 
and  manifest  indications  of  fraud,  then  by  examination 
of  the  judgment  debtor  it  can  be  shown  that  the  as- 
signment is  not  valid.  The  question  wliether  or  not 
the  assigned  property  is  not  still  the  pioperty  of  the 
debtor  is  in  doubt,  and  the  examination  may  be  di- 
rected to  that  inquiry. 

The  provisions  of  section  2460  of  the  Code,  which 
protect  the  judgment  debtor  against  the  use  of  his  evi- 
dence of  his  own  complicity  with  any  fraudulent  trans- 
fer of  his  x^roperty  in  criminal  proceedings  against 
him,  seemed  further  to  sustain  the  opinion  I  have 
above  expressed,  and  I  hold,  for  the  purposes  of  this 
motion,  that;  the  examination  of  the  defendants  in  this 
case  must  not  be  restricted  to  property  acquii'ed  by 
them  since  the  assignment,  but  may  cover  an  inquiry 
"concerning  their  property"  wdiether  equitable  or 
legal,  including  their  property  transferred  to  another 
with  the  apparent  intent  to  hinder,  delay  or  deliaud 
their  creditors.  The  scope,  and  extent,  and  nature, 
and  mode  of  that  examination  must  be  subject  to  the 
control  and  direction  of  the  judge  or  referee  before 
whom  the  examination  is  taken. 


CIVIL    PROCEDURE    REPORTS.  235 


Taylor  v.  Meldrum. 


TAYLOR,  Respondent,  v.  MELDRUM,  Appellant. 

SuPEEME   Court,   Fourth    Department,   General 
Term,    October,  1883. 

§  829. 

Evidence. — Testimony  as  to  personal  transaction  between  a  party  and  a 
deceased  person  through  whom  both  parties  claim. 

Where  the  principal  question  in  controversy  in  an  action  was  whether 
a  certain  transfer  of  personal  property  from  one  D.,  deceased  at  the 
time  of  the  trial  of  tl>e  action,  to  plaintiff,  was  fraudulent  and 
void,  tc^which  the  defendaut  chiimed  title  by  virtue  of  a  sale  un- 
der an  execution  against  D., — Held,  that  evidence  by  plaintiff  as  to 
personal  trausaction  between  himself  and  the  deceased  was  inad- 
missible ;  that  the  fact  that  such  testimony  merely  reiterated'evi- 
dence  previously  given  by  the  witness  did  not  overcome  the  objec- 
tion, when  such  evidence  was  drawn  out  either  by  the  plaintiff's 
counsel  in  the  face  of  objections  interposed  by  the  defendant,  or  on 
cross-examination  as  to  matters  stated  by  the  witness  on  his  direct 
examination,  or  it  did  not  appear  until  cross-examination  that  it 
related  to  personal  transactions  with  the  deceased. 

{Decided  January,  1884.) 

Appeal  from  a  judgment  entered  in  Onondaga 
county,  April  25,  1883,  on  the  report  of  a  referee. 

In  March,  1876,  the  plaintiff,  then  and  now  a  com- 
mercial traveler  for  a  tobacco  house,  bought  at  sher- 
iff's sale  the  stock  of  liquors  of  one  Downing,  a  liquor 
dealer.  Downing  was  thereupon  made  the  agent  of 
Taylor  for  the  sale  of  those  goods  and  other  goods 
bought  by  Taylor.  Downing  acted  as  such  agent 
down  to  July  28,  1878.  In  May,  1878,  Downing  moved 
Taylor's  and  his  own  goods  into  his.  Downing' s,  barn, 
and  while  they  were  there  they  were,  levied  upon  and 
»3ld  under  an  execution  issued  against  Downing,  and 
defendant  became  the  purchaser  of  them. 


230  CIVIL    PROCEDURE    REPORTS. 

Taylor  c.  Mcldrum. 

The  opinion  siutes  farther  Tacts. 

SedffWfckj  Ames  &  JC/nf/,  for  n[)pHn:inr. 

Th«  conversation  iiboul   the   sale  between  Taylor 
and  Downing  was  inndmissible  under  Si-'Ction  829  of 
the   Code,     Section  8'29  of   the  Code    is  a    liniitatioii 
pluced  upon    tht^  admission  of    any  and  all  evidence 
under  certain  conditions,  and   while   the  evidence  al- 
lowed to  be  given  in  regard  to  the  sale  was  utiqnestion- 
ably  7'es  f/estce,  yet  it  was  evidence  relating  to  a  trans- 
action between  Taylor  and  Downing,  since  deceased, 
through  whom  both  the  parties  to  this  suit  derive  their 
title,  and  clearly    within  seciion  829.      The   plainti^lf 
was  allowed,  under  proper  objecition,  to  testify«tis  to  a 
conversation  between  the  deceased  and  the  depnty  re- 
lating   to   a    transaction    between    himself    and    the 
deceased,   and  in    which   he  i)arficij)ated.     This  was 
clearly  an   error.     Kraushaar  c.  Meyer,  72  N.  Y.  C()2. 
The  evidence  was  incompetent  and  immaterial  for  any 
purpose.     It  was  the  mere  declaration  of  the  vendor 
after  the  alleged  sale  and  after  the  levy  had  been  made. 
Paige  V.  Cagwin,   7  IL'll,   301  ;  Cyler  v.  McCarthy,  40 
JV.  Y.  221. 

Waters,  McLennan  &  Dilla//e,  for  respondent. 

Smith,  P.  J. — The  principal  question  in  controversy 
was  whether  a  ceiTain  transfer  of  personal  property 
from  one  Downing  to  the  i)laintiff,  in  Juh',  1878,  was 
made  with  intent  to  hinder,  delay  or  defraud  Down- 
ing*s  creditois.  Downing  died  after  the  commence- 
ment of  the  suit  and  before  the  trial.  The  i)laintiff 
claimed  title  to  the  property  through  said  transfeiand 
the  defendant  claimed  it  by  virtue  of  a  lev}^  under  an 
execution  issued  upon  a  judgment  against  Downing. 

At  the  trial  the  plaintiff  was  examined  as  a  witness 
in  his  own  behalf.     His  counsel  asked  him   to  state 


CIVIL    PROCEDURE    REPORTS.  237 

Taylor  v.  Meldrum. 

what  occuired  between  him  and  Downing  on  the  27th 
and  28th  of  July  (the  time  of  the  alleged  transfer)  in 
relation  to  tlie  goods.  The  defendant's  counsel  ob- 
jected to  the  question  as  incompetent  and  inadmissible 
under  section  829  of  the  Code.  The  objection  was 
overruled,  the  defendant's  counsel  excepted  and  the 
witness  answered,  "On  the  28th  I  went  down  there, 
he  got  the  key  and  went  in  and  showed  me  these 
goods.  Downing  said  he  turned  the  goods  over  to  me 
in  satisfaction  of  a  part  of  what  he  owed  me.  We 
stayed  there  a  few  minutes  and  he  wanted  me  to  take 
the  key.  I  said,  I  don't  want  to  carry  it.  He  said  he 
would  take  it  over  and  leave  it  with  Mrs.  Downing." 

The  testimony  was  directly  within  the  prohibition 
of  section  829.  Both  parties  to  the  suit,  claimed  to  de- 
rive title  to  the  property  in  dispute  through  the 
deceased,  and  the  testimony  was  given  by  the  witness 
in  his  own  behalf  and  it  related  to  a  personal  transac- 
tion between  the  deceased  and  himself. 

The  respondent's  counsel  suggests  that  the  evidence 
in  answer  to  the  question  merely  reiterated  the  evi- 
dence given  on  dei'eii (hint's  examination  of  the  witness. 
To  some  extent  that  is  true,  but  insofar  as  the  an- 
swer relates  to  the  consideration  for  the  transfer  it  is 
new  matter. 

Besides,  the  testimou}-  previously  given  by  the  wit- 
ness in  relation  to  the  transfer  was,  for  the  most  part, 
either  drawn  out  bj'^  the  plaintifrs  counsel  in  the  face 
of  ol)jections  interposed  by  the  defendant,  or  on  cross- 
examination  as  to  matteis  srated  by  the  witness  on  his 
dii'ect  examination.  Thus  the  witness  was  allowed  to 
testify  on  his  direct  examination  that  on  July  28,  he 
was  the  owner  ot  the  property  and  then  took  posses- 
sion of  it  without  stating  from  whom  or  how  he  ac- 
quired title,  and  the  fact  that  he  derived  title  from 
Downing  did  not  appear  till  he  was  cross-examined. 
Had  that  fact  appeared  on  the  direct  examination  it 


238  CIVIL  procp:dure   reports." 

Viad<*ro  v.  Morton. 

would  have  furnished  good  <5round  for  a  motion  to 
strike  out  the  entire  testimony  of  the  witness  as  to 
his  ownersliip  of  the  property  on  the  ground  that  it 
was  incompetent  under  section  829  of  the  Code.  And 
the  fact  having  appeared  on  the  cross-examination,  the 
reexamination  on  the  same  subject  was  properly 
objected  to 

The  defendant  availed  himself  of  the  objection  to 
that  class  of  evidence  at  the  lirst  opportunity.  When' 
the  witness  was  asked  on  his  direct  examination  who 
owned  the  property  on  July  28,  the  defendant's  coun- 
sel asked  the  privilege  of  showing  by  the  witness  who 
owned  the  property  on  July  )il  and  previous  thereto, 
and  that  being  denied  him,  he  ol)jected  to  the  form  of 
the  question  and  on  the  plaintiff's  being  asked  when  he 
took  possession  of  the  j^jroperty,  the  defendant  object- 
ed, on  the  ground  that  a  mere  conclusion  was  called 
for  and  not  the  facts,  but  the  referee  in  his  discretion 
overruled  the  defendant  on  both  i>oints. 

The  judgment  should  be  reversed  and  a  new  trial 
ordered  before  another  referee,  costs  to  abide  events. 

Haedin  and  Barker,  JJ.,  concurred. 


VIADERO  V.  MORTON  and  ANOTHER. 

City  Court  of  New  York,  Special  Term,  Novem- 
ber, 1884. 

§§  440,  4:4. 

Parties  to  action. —  When  all  the  obligors  in  bond  not  iwrssarj/. — Auction- 
eer's bimd. — Liability  of  sureties. — Suit  on,  by  whom  browjht. 

An  action  may  be  maintained    hy  one  who   Iia3  lost  Iiis  property  by 
the  disbouest  and  fraudulent  acts  of  an  auctioneer  on  a  bond  "iven 


CIVIL    PROCEDURE    REPORTS.  239 

Viadero  v.  Morton. 

by  the  Jiuctioneer  to  the  May<^r.  &c.  of  the  city  of  New  York,  which 
the  stfitute  {Laws  of  1853,  chap.  138),  requires  before  a  license 
•  for  engaging  in  the  business  of  an  auctione  r  can  l>e  granted, 
and  that  although  tiier«  lias  buen  no  assi'^ument  of  tlie  bon<i  from 
tliu  .Mayor,  etc.  to  tlie  phiintitl.  Tlie  bond  was  intended  to  indem- 
nify j)erson3  losing  property  by  the  d'-^honest  acts  of  tlie  auctioneer, 
and  the  mayor,  etc.  is  merely  their  trustee. 

Tn  such  a  case  it  is  not  necessary  to  maivc  ud  the  obligors  in  the  bond 
parties  to  the  action,  but  the  plaintiff  may  select  as  defendants  any 
or  all  of  the  parties  liable  upon  the  bond. 

The  conversion,  .by  an  autioneer,  oi  pro|)erty  or  the  proceeds  of  prop- 
erty given  to  him  for  sale  is  a  "  fraudulent  and  dishonest  practice" 
within  the  meaning  of  tlie  bond  which  iLe  law  requires  an 
auctioneer  to  give  before  can  engage  in  that  business  in  the  c'ty 
of  New  Yorli. 

{Decided  November  12,  1884.) 

Demurrer  to  a  complaint  on  the  ground  of  non- 
joinder of  parties,  and  that  it  does  not  state  facta 
sufhcient  to  constitute  a  cause  of  action. 

This  action  was  brought  against  the  sureties  in  a 
bond  given  by  an  auctioneer  to  the  mayor,  aldermen 
and  commonalty  of  the  city  of  New  York  on  the  grant- 
ing of  a  license  to  him  by  the  mayor  to  engage  in  the 
business  of  an  auctioneer.  The  bond  was  in  the  pen- 
alty of  $2,000,  and  was  conditioned  to  pay  all  damages 
causecl  by  the  fraudulent  and  disiionest  practices  of 
the  auctioneer  in  his  said  business.  The  plaintiff 
asserts  that  the  auctioneer  converted  certain  property 
and  appropriated  the  proceeds  of  certain  other  prop- 
erty belonging  to  the  plaintiff,  which  was  given  to  him 
for  sale.  The  auctioneer  was  not  made  a  party,  and  it 
did  not  appear  that  the  bond  given  by  him  had  been 
assigned  to  plaintiff. 

Other  facts  are  stated  in  the  opinion. 

Langbeiii  Bros.  &  Son,  for  plaintiff. 
H.  E.  Farnsworthj  for  defendant. 


240  CIVIL     PROCEDURK     REPORTS. 

Viadeni  v.  Mort<m. 

BiiowNE,  J. — Tlie  questions  involved  urise  upon 
demurrer  to  the  comphiint. 

Section  454  of  the  Code  of  Civil  Procedure  permits 
an  action  upon  a  written  instrument  to  be  maintained 
against  persons  severally  liable  upon  the  same  instru- 
ment, and  any  or  all  of  such  persons  may  be  included 
as  defendants  in  one  action.  This  section  re-enacts 
those  portions  of  section  120  of  the  Code  of  Procedui-e 
which  relate  to  the  questions  involved  here.  That 
section,  so  far  as  it  affects  the  right  to  maintain  an  ac- 
tion in  the  form  as  is  claimed  here,  received  a  con- 
struction in  the  court  of  common  pleas  in  the  case  of 
Field  ».  Van  Cott  (5  Dal?/,  3()8),  where  two  only  of  the 
obligors  upon  a  bond  were  sued — tlie  thiid  and  prinri- 
pal  in  the  bond  being  omitted.  The  court  hekl  that 
the  action  was  maintainable;  that  the  common  law 
rule  was  abrogated  by  the  Code  of  Procedure  (^  1:^0), 
and  the  plaintiff  could  select  as  defendants  in  the  same 
action  any  or  all  of  the  parties  liable  upon  thesnme 
written  instrument.  I  liud  no  distinction  between  that 
case  and  the  case  at  bar.  It  follows  that  the  first 
ground  of  demurrer  must  be  overruled. 

The  second  ground  of  demurrer  i^resents  two  ques- 
tions : 

I.  It  is  not  alleged  in  the  complaint  that  the  de- 
fendant Stacom,  who  ai)pears  and  demurs,  is  guilty  of 
any  of  the  wrongful  ads  complained  of  as  the  cause 
of  damage  to  the  plaintiff  and  constituting  the  alleged 
cause  of  action. 

II.  That  the  plaintiff  cannot  maintain  the  action 
because  title  to  the  bond  is  not  shown  in  him  by  as- 
signment from  the  mayor,  aldermen  and  commonalty, 
&c.,  or  leave  to  sue  thereon  lirst  obtained  from  the 
court. 

No  provision  of  statute  law  exists  specially  applic- 
able to  this  bond,  which  requires  a  person  damnified 
by  a  breach  of  its  conditions  to  first  obtain  an  assign- 


CIVIL    PROCEDURE    REPORTS.  241 

.     Viadero  v.  Morton. 

ment,  or  special  leave  to  sue,  before  he  can  maintain 
his  action.  Consequently  we  are  rel^^gated  to  existing 
general  provisions  of  law  to  deternune  whether  the 
action  can  be  maintained  by  such  person  without  such 
assignment,  or  leave  being  lirst  obtained. 

In  this  connection  we  must  regard  the  mischief 
which  it  was  intended  to  remt^dy,  and  the  abuses  which 
it  meant  should  be  nbated  by  the  enactment  of  the  law 
which  required  the  giving  of  a  bond  by  an  auctioneer 
before  he  could  lawfully  pursue  his  calling  as  such, 
within  the  city  of  Ne\v  York  {Laws  of  1858,  chapter 
138).  The  preamble,  section  1,  of  the  act  recites  the 
existence  of  an  evil  among  certain  persons,  whereby 
others  by  the  fiaudulent  and  deceitful  practices  and 
dishonesty  of  those  persons  are  deprived  of  their  prop- 
erty. The  secor)d  section  defines  certain  penalties  to 
be  imposed  upon  such  persons  who  obtain  money, 
goods  or  other  property  from  persons  designedly,  and 
with  intent  to  defraud  such  other  persons.  The  third 
section  requires  a  license  to  be  obtained  from  the  may- 
or before  a  person  can  engage  in  the  business  of  an 
auctioneer,  such  license  to  be  granted  upon  tiling  a 
bond  with  sureties  in  the  penalty  of  S-,000.  The 
fourth  section  provides  for  a  hearing  before  the  mayor, 
of  charges  of  violations  of  the  act,  and  vests  him  with 
power  to  revoke  licenses,  commit  the  offender  for  trial 
and  to  declare  the  bond  forfeited. 

It  is  my  duty,  to  give  such  a  construction  to  the  act 
as  will  suppress  the  mischief  and  advance  the  remedy. 
The  intention  of  the  lawgiver  is  to  be  deduced  from  a 
view  of  the  whole  and  every  part  of  the  statute,  taken 
and  compared  together. 

The  language  of  the  above  act  leaves  little  room  for 
argument  as  to  its  meaning,  intent  and  effect.  Its  va- 
rious provisions  are  in  harmony  with  the  intent  of  the 
legislature  to  give  the  fullest  and  most  ample  security 
to  the  public,  who  might  deal  with  persons  licensed 
Vol.  VL— 16 


242  CIVIL    PROCEDURE    REPORTS. 

Viadero  v.  Morton. 

to  pursue  a  calling  in  this  city,  which  the  act  in  effect 
declares  was  abused  by  vicious  persons,  who  resorted 
to  many  subtle. methods  to  deprive  others  of  their 
property.  Care  sliould  be  taken,  where  viohitions  of 
the  provisions  of  the  act  were  established,  that  ail  the 
remedies  provided  by  law  should  be  a[)plied  when  \n- 
Toked  by  a  person  defrauded.  While  the  act  provided 
penalties  for  the  violation  of  its  provisions  which  af- 
fected the  personal  liberty  of  the  violator,  it  was  aho 
the  clear  intention  to  provide  for  the  material  and 
beneficial  security  of  persons  dealing  with  theauction- 
eer,  who,  by  his  fraudulent  and  dishonest  practices, 
were  deprived  of  their  i)roperty.  To  give  effect  to  the 
act  and  invoke  the  safeguards  by  if  established,  it  is 
consistent  with  fair  interpretation  to  lujld  that  the  cu- 
mulative remedies  contained  therein  are  susceptibleof 
being  exercised,  when  occasion  requires,  indt-pend- 
ently  of  each  other.  The  remedy  of  imprisonn)ent  as 
a  punishment  for  the  Violation  of  the  peace  and  dig- 
nity of  the  state  or  the  proceedings  to  be  taken  before 
the  mayor,  do  not  impair  the  right  of  a  person  damni- 
fied to  pursue  his  remedy  upon  the  bond  to  recover 
damages  incurred  for  breach  of  its  condition. 

]f  the  foregoing  conclusions  are  correct,  that  the 
bond  was  intended  to  indemnify  persons  who  lost  tlieir 
property  by  reason  of  the  dishonest  practices  of  the 
auctioneer,  it  seems  to  me  that  there  can  be  no  doubt 
as  to  the  right  of  the  [)laintiff  to  maintain  an  action 
upon  the  bond  without  assignment  from  the  mayor, 
aldeimen  and  commonalty,  &c.  It  is  true  that  no 
provision  is  made  in  the  act  as  to  who  shall  be  named 
obligees  in  the  bond,  nor  where  it  is  to  be  filed,  but  as 
its  execution  and  liling  are  made  conditions  [)recedHnt 
to  the  applicant  obtaining  a  license  from  the  mayor  to 
engage  in  the  business  of  an  auctioneer,  he  (the  may- 
or) is  impliedly  authorized  to  receive  the  bond  and 
nominate  the  obligees.     Where  the  law  vests  the  power 


•    €iyiL    PROCEDURE    REPORTS.  2^3 

Vi:tdei(»  V.  Morton. 

in  an  officer  it  imposes  the  duties  incident  to  that 
power.  It  gave  the  min^or  the  power  to  issue  the 
license  in  the  name  of  the  corporation  of  which  he  was 
at  the  time  chief  executive  officer.  In  taking  the  bond 
the  mayor  acted  as. a  public  official  and  exercised  the 
power  vested  in  him  by  law  in  liaraiony  with  the  im- 
plied duty  that  powers  of  the  natnre  conferred  should 
be  exercised  in  the  name  of  the  beneficiary  which,  in 
this  instance,  was  the  city  of  New  York  in  its  corpor- 
ate name.  Aside  from  the  legal  implication  resolved 
from  the  power  vested  in  the  mayor  to  issue  the  license 
upon  condition  of  the  giving  of  the  bond,  the  defend- 
ants are  precliided  from  questioning  the  authority 
under  which  the  mayor  acted  in  receiving  the  liond  in 
the  form  he  did.  Before  their  principal  could  act  as 
auctioneer,  a  license  was  necessary.  The  mayor  could 
not  issue  it  without  the  bond.  It  was  delivered  in 
compliance  with  the  legal  right  to  demand  it,  con- 
ferred by  the  law  under  which  it  was  given.  The 
sureties  permitted  their  principal  to  possess  himself 
of  the  right  to  |)ursue  his  calling.  He  did  so,  and  then 
violated  his  obligation.  It  is  now  too  late  to  question 
their  liability  (Supervisors  Rensselaer  v.  Bates,  17  JV. 
Y.  245  ;  People  v.  Norton,  9  JV.  Y.  178). 

While  the  bond  was  taken  by  the  mayor,  &c.,  as 
obligees,  and  nominally  as  beneficiaries,  it  was  only  as 
trustees  of  an  express  trust  for  the  benefit  of  any  per- 
son injured  by  breach  of  its  condition.  The  plaint- 
iff in  his  complaint  charges  that  the  auctioneer  con- 
verted certain  property,  &c.  ;  appropriated  the  pro- 
ceeds of  certain  other  property  sold  by  him  which  be- 
longed to  plaintiff  and  was  given  to  the  auctioneer  for 
sale.  It  is  charged  that  such  acts  on  the  part  of  the 
auctioneer  were  "  fraudulent  and  dishonest  practices," 
and  within  the  provisions  of  the  bond.  In  this  con- 
clusion I  concur.  The  demurrer  admits  the  facts. 
The  complaint  shows  that  the  plaintiff  was  injured  by 


244  CIVIL    PROCEDURE    REPORTS. 

Viadero  v.  Morton. 

the  acts  of  the  auctioneer,  secured  against  by  the  bond, 
and  that  he  is  entitled  to  the  proceeds  of  the  recovery 
herein.  No  interest  in  the  result,  because  ol  the  spec- 
ial breach  charged  is  shown  to  be  in  the  mayor,  &c. 
The  plaintiff  is  the  real  and  only  party  in  interest,  and 
the  action  is  properly  brought  in  his  nnme  {Code  Civil 
Pro.  §  449).  The  section  referred  to  permits  an  action 
to  be  brought  by  the  trustee  of  an  express  trust  for 
the  benefit  of  his  "cestui  que  trust,"  but  it  does  not 
preclude  the  real  party  in  interest  from  suing  to  an- 
force  the  liability  incurred  by  the  obligors.  The  fol- 
lowing cases  fully  illustrate  the  proposition,  and  ref- 
erence to  them  is  made  without  further  comment 
(Cndler  v.  Curry,  \4^How.  Pr.  349-;  Williams  o.  Kier- 
nan,  25  Hun,  358). 

It  being  shown  that  the  cause  for  which  the  plaint- 
iff seeks  a  recovery  is  within  the  terms  of  the  obligation 
provided  against  and  that  the  action  is  maintainable 
as  brought,  the  defendants  are  liable  for  damages  for 
the  breach,  without  recourse  having  been  first  had 
against  the  principal.  The  condition  of  the  bond  is 
that  the  principal  "shall  refrain  from  all  fraudulent, 
deceitful  and  dishonest  practices.'  The  principal  did* 
not  refrain,  but  practiced  them.  The  sureties  make 
themselves  privies  to  the  acts  of  the  princii)al  when  he 
does  thaj^  which  they  all  agree  he  will  not  do,  and  they 
are  bound  to  th.e  same  extent  that  he  would  be. 

Demurrer  overruled  ;  judgment  for  plaintiff,  with 
leave  to  the  defendant  to  answer  over  within  six  days, 
upon  payment  of  trial  fee  of  an  issue  of  law. 


CIVIL    PROCEDURE    REPORTS.  245' 


Estate  of  York. 


Estate  of  JOSHUA  YORK,  Deceased. 

Scjrrooate's  Coukt,  New  York  CouNTy,  November, 

1884. 

.§  2743. 

Surrojate.-^Jdiisdietionof,  to  determine  rights  of  legatees. 

Ttie  snnof^ate  lias  jiiris'diction  upon  the  settlement  of  the  account* 
-of  an  executor  to  lix  and  determine  the  rights  of  all  who  claim,  as 
lejjatees,  under  tlio  will"  of  the  testator,  notwithstanding  that  the 
validity  of  some  of  the  legacies  is  attacked.*  [''] 
Fraenznick  v.  Miller  (VDem.  13G),  overruled;  ['J  Matter  of  Verplanck 
';<91  N.  Y.  439);  [\*\  Iligt^^s  ®.  Cragg  (89  jV.  Y.  479);  [»]  Purdy  v. 
J-HaytCgS  Id.  446)  [«]  followed;  Tiester  v.  Shepard  (92  K  Y.  251), 
not  followed. [^] 
{Decided  Novemler  20,  1884.) 

'  Proceedings  for  the  settlement  of  the  accoants  of 
an  executor. 

'  Sufficient  facts  are  stated  in  the  opinion. 

C.  W.  Van  Voor/ils,  tov  eKecntoY. 

Lemuel  Skldmore  and  Ahner  C.  TJiomas,  for  lega- 
tees. 

Rollins,  S, — Tins  testator,  by  one  of  the  clauses 
in  the  second  article  of  his  will,  gives  five  hundred 
dollars  ''to  the  trustees  of  the  Second  avenue  M.  E. 
Church,  corner  of  One  Hundred  and  Nineteenth  street, 
toward  paying  off  the  debt  of  the  church."  By  the 
same  clause,  also,  he  gives  "to  the  managers  or  trus- 
tees of  the  Methodist  City  Mission  8''>00."  His  execu- 
tor having  filed  nn  account  of  his  ndministralion,  now 

*To  the  same  efTect,  Estate  of  Qrser,  IN.  Y.  Cic.  Pro.  129.    Contra^ 
In  re  Brown,  y  Id.  3fi. 


.246  CIVIL    PROCEDTTIIE    REFORTS. 

Estate  of  York. 

seeks  to  enter  a  decree  for  its  judicial  settlement ;  but 
he  attacks  the  validity  of  both  the  above  named  lega- 
cies, and  suggests  that  the  surrogate,  for  lack  of  juris- 
diction to  determine  the  questions  thus  raised,  should 
direct  the  accounting  party  to  retain  in  his  hands  a 
sum  sufficient  to  meet  any  demands  growing  out  of 
these  bequests,  that  may  be  successfully  prosecuted 
in  a  competent  tribunal. 

He  claims  that  the  bequest  first  named  is  ineffective 
by  reason  of  the  fact  that  the  church  in  One  Hundred 
and  Nineteenth  street  is  not  now  in  debt,  and  was  not 
in  debt  when  the  testator  died.  He  claims  also  that 
there  is  no  existing  jierson  or  institution  bearing  the 
name  of  ''Methodist  City  Mission,"  and  none  which 
is  competent  to  take  the  bequest,  whereof  the  will 
makes  the  Methodist  City  Mission  the  beneficiary. 

It  is  insisted  in  behalf  of  the  parties  res|>ectively 
claiming  as  legatees  that  the  surrogate  is  fully  author- 
ized by  the  Code  of  Civil  Procedure  to  determine  these 
disputed  questions. 

Section  2743  of  that  Code  provides  that,  "  Where 
an  account  is  judicially  settled  as  ])rescril)ed  in  this 
article,  and  any  part  of  the  estate  remains  and  is  ready 
to  be  distributed  to  the  creditors,  legatees,  next  of  kin,, 
husband  or  wife  of  thedecedent,  or  their  assigns,  the 
decree  must  direct  the  payment  and  distribiition  theie- 
of  to  the  persons  so  entitled,  accoiding  to  iheii-  re- 
spective rights." 

Tl>e  section  further  declares  that,  "Where  th«^ 
validity  of  a  debt,  claim  or  distrilmtive  share  is  ixt 
disputed  or  has  been  established,  the  decree  must  de- 
termine to  whom  it  is  payable,  the  sum  to  be  jmid  by 
reason  thereof,  and  all  other  questions  concerning  the 
same." 

In  the  case  of  Fraenznick  v.  Miller  (1  Dem.  ISC-lol) 

[']"   I  contrasted  the  section  just  quoted  from  the  Code 

with  the  statutory  provision  which  it  had  superstid- 


CIVIL    PROCEDURE    REPORTS.  247 


Estate  of  York. 


ed,  namely,  section  71,  title  3,  chMpter  G,  )»;nt  2  of  the 
Revised  Statutes  (8  Bunks'  Gtli  ed.  104).  I  relerrod  to 
the  fact  that  wJdle  by  rh^>  etnlier  provision,  I  lie  ii«;ht 
of  determining  all  quesiions  coiic^Miiin;^  any  di-bt, 
claim,  le^-acy,  bequest  or  distributivf  sh'ir(%  h.id  been 
conferred  upon  the  siirrognle,  the  authority  of  tliat 
officer  to  make  such  determination  is  limited  by  the 
Inter  statute  to  "debts,  claims  ov  distributive  shnres 
wliose  validity  is  not  dis[)Uted  or  has  been  estab- 
lished.'' 

Because  of  this  fact,  and  because  of  the  fact  that 
Mr.  Couimissionei-  Throop  had  declared  in  his  edition 
of  the  Code  by  a  note  to  the  very  section  under  con- 
sideration, that  it  was  the  pur])ose  of  the  coditiers  to 
bring  the  letter  of  the  new  enacrment  into  unniistaka- 
blo  conformity  with  the  constriuitioii  that  the  courts 
had  put  upon  the  old,  I  felt  bound  to  hold  in  Fiaenz- 
3iick  w.  Miller,  that  wiienever  an  executor  or  adminis- 
trator shouhl  dispute  the  validity  of  a  demand  against 
his  decedent's  testate,  wlietlier  such  demand  should  be 
made  in  belialf  of  one  claiming  as  creditor,  or  as  lega- 
tee, or  in  any  other  capacity  whatsoever,  the  authority 
of  the  surrogate  in  the  i)remises  woiihl  be  straightway 
suspended,  and  would  ivmain  snsi)ended  until  the 
validity  of  such  demiind  should  have  been  passed  upon 
l)y  some  tribunal  of  competent  jurisdiction,  and  by 
some  other  tribunal,  of  course,  thai;  (hecourtof  the 
surrogate. 

While  this  interi)retation  was.  in  my  judiiment, 
n:iavoi(lable,  I  adopted  it  with  no  little  reluctance,  and 
am  glad  lo  lind  what  seems  lo  me  abundant  warrant 
for  abandoning  it,  in  certain  recent  decisions  of  the 
couj-r  of  appeals. 

In  Matter  of  Veri)lanck  (01  N.  Y.  439),  where  ques- 
tions similar  to  thoise  here  presented  were  under 
[']  consideration.  Eai:l,  J.,  ]U'onouncing  the  unan- 
imous opinion  of   that  court,  declared  that  surro- 


248  CIVIL    PROCEDURE    REPORTS. 


Estate  of  York. 


gates  "  must  have  jurisdiction  to  construe  wills,  so  far 
at  least  as  is  needful  to  determine  to  whom  legacies 
shall  be  paid."  Kefcrring  to  the  then  recent  decision 
in  Riggs  -n.  Cragg  (.89  N.  Y.  479),  he  added  :  "  We 
were  unanimously  of  the  opinion  that  they  yK)sses8ed 
such  a  power  under  the  Revised  Statutes  before  the 
Code  of  Civil  Procedure,  and  it  icas  clearly  not  the 
intention  of  the  Code  to  narrow  or  d.'nuinish  ilie  juris- 
diction of  s^crrogatea,  but  rather  to  enlarge  ity  By 
the  words  italicised,  taken  in  connection  with  their 
context,  I  understand  tliat  the  propositions  dei'lared 
in  Riggs  V.  Cragg,  i'es[>ecting  the  jurisdiction  of  sur- 
rogates upon  final  accountings,  though  those  proposi- 
tions in  terms  relate  only  to  cases  arising  under  the 
Revised  Statutes,  are  j^ronounced  to  be  equally  applic- 
able to  cases  arising  under  the  Code. 

In  Riggs  V.  Cragg.  a  iK-^rson  claiming  as  legatee 
sought  to  enforce  from  his  testator's  executors  the 
[']  payment  of  a  disputed  legacy.  There  were  divers 
persons  interested  in  the  estate, whose  rights  would 
be  affected  by  the  enforcement  of  a  decree  in  the  peti- 
tioner's favor.  None  of  these  persons  were  cited  or 
had  appeared  as  parties  to  the  proceeding.  Comment- 
ing upon  this  fact,  A^fDiii-AVS,  J.,  pronouncing  the 
opinion  of  the  court,  said  :  "  When  the  surrogate  can 
see  that  other  persons  clain),  or  may  claim  the  same 
thing  as  the  petitioner,  and  that  a  leal  question  is  |)re- 
sented  as  to  the  right  r)f  several  pers(uis  to  the  legacy 
or  fund,  natural  justice  requires  that  he  should  not 
jiroceed  to  a  determination,  without  the  preseiu-e  of  all 
the  parlies  who  may  be  a  Iterated  by  the  adjudication. 
The  statute  ]>rovides  for  bringing  in  all  the  ])aities  in 
interest  on  thetinal  accounting,  and  hi  that  proceeding 
jurisdiction  is  conferred  to  settle  and  adjust  conflicting 
rights  and  interests." 

The  learned  justice  subsequently  referred  to  the  oft- 
cited  decision  in  Bevan  v.  Cooper  (72  I\.  Y.  ai7).  and 


CIVIL     PROCEDUJ'.K     REPORTS.  249 


Estfite  of  York. 


after  suggesting  that,  upon  the  reported  facts  of  that 
case,  tliere  seemed  to  have  been  no  necessity,  as  inci- 
dent to  the  accounring  or  distribution,  for  the  surro- 
gate to  assume  the  i)ovver  ol  iiUerpretating  the  testa- 
tor's will,  added  :  "  It  is  doubtless  true  that  a  surro- 
gate has  no  general  jurisdiction  in  the  construction  of 
wills,  but  where  the  right  to  a  legacy  depends  upon  a 
question  of  consti'uction,  it  must  be  determined  before 
a  decree  for  distribution  can  be  made.  The  surrogate 
lias,  we  think  jurisdiction  ....  upon  a  tinal  ac- 
counting, where  ail  parties  interested  are  before  the 
court,  to  detern)ine  such  construction  as  incident  to 
the  authority  to  make  distribution." 

In  "Matter  of  Ver[)lanck"   (supra),   the  court  of 
appeals  recently  upheld  a  surrogate's  authority  to 
[*]     determine,  upon  an  executor's  accounting,  whether 
a  provision  in  a  testator's  will  should  be  deemed 
invalid  as  involving  a  suspension  of  the  power  of  alien- 
ation, and  whether  by  Another  provision  directing  dis- 
ribation  of  a   portion  of  his  estate,  the  testator  in- 
tended a  distribution  per  stirpes  or  one  per  capita. 
The  opinion  of  Kuger,  Ch.  J.,  in  Fiester  v.  Shep- 
ard    (92  N.    Y.    251),    contains    intimations    that 
[']     are  not,  perhaps,  in  thorough  liarmony  with  the 
doctrine  of  the  two  cases  last  cited,  but  the  doc- 
trine  has  been  still   more  recently  reasserted  by 
["J     the  court  of  last  resoi  t  (Axi)iii-:ws,  J.,  iirononnc- 
ing  its  opinion)  in  Purdy  v.  llayt  (92  N.  Y.  446). 
Upon  the  authority  of  these  decisions,  I  must  deny 
the  motion  of  counsel  for  the  executor,  and,  in  the 
f]     decree  about  to  be  entered,  must  settle  and  deter- 
mine the  rights  of  all  who  claim  as  legatees  under 
the  will.   A  reference  will  be  ordered  for  that  purpose. 


250  CIVIL-  PROCEDURE    REPORTS. 


In  re  Jcues. 


In  re  JONES. 

SuPKEME  Court,   New    York  County,   Chambers, 
November,  188-4. 

§§  8,  11,  14,  854-857,  2285,  2481  subd.  7,  3002. 

Contempt — When  criminal,  punishahU  civUly. — Form  of  warrarU  of 
commitment  — Fine. — lievieie. 

The  refusal  of- a  witness  on  the  tr.'al  of  a  civil  action  or  proceeding  to 
answer  legal  and  proper  questions,  msiy  be  punished  us  a  civil  con- 
tempt, alihougli  tile  refusal  was  couiumaeious  and  miglit  have  been 
treated  as  a  criminal  contempt. 

Where  tlie  warrant  committing  a  witncs.*:  to  jarl  for  contempt  in  refus- 
ing to  answer  certain  interrogatories  prop.)unded  to  her  while  upon 
the  witness  stand  in  a  procee'ling  in  a  surrogate's  conn.  Tor  ihe 
probate  of  a  will,  recited  thefuciS  without  letting  out  tne  inter- 
rogatories, and  committed  her  until  she  should  answer  "  such 
legal  and  proper  interrogaunie«." — Held,  t'.iat  it  suflicient^y  speci- 
fied the  act  or  duly  to  be  periurmed. 

It  is  not  necessary  to  insert  tiie  particular  interrog.-itorie^  in  i!ie  w:.r- 
rant  for  the  commitment  of  a  witness  for  refusing  to  answer  ques- 
tions in  a  surrogate's  or  other  court  of  record;  the  rule  is  clifferent 
iu  justices'  courts  and  in  certain  proceedings  before  boaals,  arbi- 
trators and  committees,  and  even  before  judges  and  referees  where 
they  are  expressly  authorized  bylaw  to  iiear,  try  and  det  rinine  a 
matter,  and  also,  it  neemn,  where  the  witness  is  proceeded  against  as 
for  a  criminal  contempt  even  in  a  court  of  rectnd. 

The  court  has  jurisdiction  in  civilly  punishing  a  witness  in  a  civil 
action  or  proceeding  for  refusing  to  answer  questions  properly  put 
to  him,  to  im|)Ose  a  fine  not  exceeding  tlie  amount  of  ihecomplain- 
ant'scosts  and  expenses,  and  $2")0  besides,  although  it  isnotsiiown 
that  any  actual  loss  or  injury  lias  been  produced  by  ilie  witness's 
misconduct,  and  wiiere  there  is  an  error  in  the  amount  of  the  tine, 
it  can  only  be  cured  by  appeal  or  motion,  and  cannot  be  reviewed 
\\])on,habea8  cwpus  or  ancillary  certiorari. 

{Decided  J^ovemher  2T),  1884.) 

Motion  on  return  of  habeas  corpus  for  the  discharge 
of  the  j)risoner. 


CIVIL    PROCEDURE    REPORTS.  25t 

In  re  Jones. 

The  prisoner,  Miss  Rebecca  Jones,  was  a  witness  in 
a  proceeding  in  the  surrogate's  court.  New  York  coun- 
ty, for  the  probate  of  the  will  of  one  Louis  Hammers- 
ley,  deceased.  While  upon  the  stand  certain  questions 
were  put  to  her  which  she  refused  to  answer,  where- 
upon she  was  committed  to  jail  by  the  surrogate,  until 
the  questions  were  answered. 

The  warrant  of  commitment  did  not  set  out  the 
interrogatories. 

Further  facts  are  stated  in  the  opinion. 

William  H.  SJiepard,  for  the  motion. 

FranJclin  Bartlett,  opposed. 

Barrett,  J. — I.  The  prisoner  was  punished  as  for 
a  civil  contempt.  Refusing  to  answer  as  a  witness  is 
none  the  less  punishable  civilly  because  the  refusal 
was  contumacious  and  might  have  been  treated  as  a 
criminal  contempt. 

II.  The  warrant  of  commitment  specifies  the  act  or 
duty  to  be  performed  ;  namely,  that  tlie  prisoner  an- 
swer "  such  legal  and  proper  interrogatories,"  that  is," 
the  legal  and  proper  interrogatories  ])reviously  recited, 
for  refusing  to  answer  which  she  was  committed. 
These  are  the  interrogatories  "which,"  says  the  war- 
rant, "  may  be  propounded  to  her  in  this  proceeding," 
and  in  answering  which  she  may  purge  her  contempt. 

III.  When  the  party  proceeds  civilly  in  a  court  of 
record  it  is  not  necessary  to  insert  the  particular  inter- 
rogatories in  the  w^arrant  of  commitment.  The  statute 
only  requires  a  specification  of  the  act  or  duty  to  be 
performed.  {Code,  §  2285.)  TJie  duty  here  to  be  per- 
formed by  the  prisoner  is  plainly  stated.  She  is  to 
make  answer  to  the  interrogatories  which  were  pro- 
pounded to  her  upon  the  19th  day  of  May,  1884,  while 
she  was  upon  the  witness  stand  at  a  surrogate's  court 


252  CIVIL    PROCEDURE    REPORTS. 

' ■ . irf 

III  re  Jones. 

held  in  the  city,  and  wljicii,  notwitlislnudinj;-  I  lie  direc- 
tion of  the  surrogate,  slie  then  and  there  contuma- 
ciously and  unlawfully  let'used  to  answer. 

The  rule  is  different  in  justices'  courts  {Code^ 
§  3002),  idso  in  certain  proceedings  before  boards,  ar- 
bitrators and  committees  ;  and  even  before  judges  and 
referees,  wlir-n  they  are  expressly  authorized  by  law 
"  to  bear,  try  and  determine  a  matter."  {Code.  %%  854- 
857.)  It  may  be,  loo,  that  the  particular  question 
should  be  inserted  in  the  warrant  where  the  witness  is 
proceeded  against  as  for  a  criminal  contempt,  even  in 
a  court  of  record.  {Code,  ^§  8,  1 1.)  But  I  lind  no  autlifor- 
ity  requiring  the  particular  circumstances  of  the  offense 
to  be  inserted  in  the  mandate  of  commitment  for  a 
civil  contempt  in  such  a  court.  Under  the  present 
Code  the  surrogate's  court  is  a  court  of  rect)id,  and  a 
surrogate,  in  court  or  out  of  court,  has  power  to 
"punish  any  person  for  a  contempt  of  his  court,  civil 
or  criminal,  in  any  case  where  it  is  expressly  prescribed 
by  law  that  a  court  of  record  may  punish  a  person  for 
a  similar  contempt,  and  in  like  manner."  {Code,  §2481, 
sub.  7.) 

IV.  As  to  the  fine.  The  court  had  jurisdiction,  al- 
though it  was  not  shown  that  actiuil  loss  or  injury  had 
been  produced  by  the  i)risoner's  misconduct,  to  impose 
a  fine  not  exceeding  the  amount  of  the  comjilainant's 
costs  and  expenses,  and  S^.IO  besides.  {Code,  §  2285.) 
As  the  amount  allowed  in  the  present  instance  was 
within  the  statutory  power  of  the  court,  the  commit- 
ment is  not  void,  and  any  error  can  oidy  be  cured  by 
appeal  or  motion.  Such  error  cannot  be  reviewed  upon 
habeas  corpus  or  the  ancillary  certiorari.  (People  ex 
rel.  Woolf?)..  Jacobs,  0(5  N.  Y.  8.) 

The  writ  must  be  dismissed  and  the  prisoner 
remanded. 


CIVIL     PROCEDURE    REPORTS.  253 


Irr  V.  Schroedor. 


IRR,    AS    EXECUTOR,  ETC.,  RESPONDENT,    V.  SCHROE- 

DER,  Appellant. 

County  Court,  Erie  County,  October,  1884. 

§§  1695,  1699,  2876,  2901,  2902,  2916,  2917,  2920,  2925, 
2933,  3063. 

Justice  of  tJie  pence. — Provisional  remedies  in  court  of. — Effect  of  ei'ror 
in  replevin  procesH  on  jiMlyment. — Error  in  taxing  costs. 

An  attachment,  order  of  arrest  and  writ  of  replevin,  in  a  justice's  court 
are,  substantially,  provisional  remedies.  [*]  and  us  a  summons  is  is- 
stied  in  every  case,  tlic  jurisdiction  of  1  lie  court  does  not  depend 
upon  their  validity  [^'J  ami  tliey  msiy  be  set  aside  and  still  the  ac- 
tion continue  to  judgment,  if  the  summons  lias  been  properly  issued 
and  served  upon  the  defendant.  [°j  If  a  justice  refuses  to  set  aside 
an  irregular  provisional  remedy  and  proceeds  to  judgipent,  the  ap- 
pellate court,  ouap])eal,  should  not  reverse  a  correct  and  meritori- 
ous judgment  on  account  of  the  irieguhir  pmvisiontd  remedy,  but 
should  merely  set  aside  the  latter. |^"J 

Where,  in  an  action  before  a  justice  of  the  peace,  to  recover  certain 
chattels,  the  iiffidavit  and  undertaking  upon  -whieli  a  wurrant  to 
replev}'  the  chattels  was  issue<l,  were  iiisuflieient,  and  the  justice 
refused  to  dismiss  the  iiction  because  thereot",  but  on  a  trial  of  tlie 
action,  rendered  judgment  in  favor  of  the  plaintiff,— 7/<?W,  on  ap- 
peal, tliat  the  rei)levin  should  l>e  set  aside,  but  as  there  was  notliing 
in  the  case  requiring  a  reversal  of  the  judgment  on  the  merits,  it 
should  be  allowed  to  stand ;['",'^j  that  the  defendant's  motion 
should  have  l)een  to  set  aside  the  replevin  process,  not  to  dismiss 
the  action. ['Vj 

In  an  action  brfore  a  justice  of  tlic  peace,  the  affidavit  on  which  a 
writ  of  re|)levin  is  granted,  must  state  the  value  of  the  property  ['] 
and  the  undertaking  given  by  the  plaintiff  must  be  executed  by 
two  sureties. ['^J 

In  an  action  to  recover  a  chattel  proof  cf  demand  before  the  service 
of  Hie  papers  on  the  defendant  is  sufficient;  the  action  is  not  com- 
menced as  to  him  until  such  service. ['] 


254  CIVIL    PROCEDURE    REPORTS. 

Irr  V.  Schroeder, 

A  justice's  judjrment  should  not  be  reversed  bj'  reason  of  an  error  ia 

taxing  costs. [■*] 
Fritsse  r,  Pultz  (2  N.  T.  Civ.  Pro.  142),  not  followed ;["]  McNcury  v. 

Ciiase  (30  Hun,  491),   followed.  [•] 
{Decided  Octolier  22,  1884.) 

Appeal  from  judgment  rendered  by  a  justice  of  the 
peace. 

The  opinion  states  the  facts. 

A.  Bartholoview^  for  appellant. 

D.  G.  Jackson,  for  respondent. 

Hammond,  J. — Appeal  from  a  judgment  of  a  justice 
of  the  peace  in  an  action  of  replevin. 

This  action  was  brought  by  the  plaintiff  as  execu- 
tor of  the  last  will,  &c.  of  Frederica  Schroeder,  de- 
ceased, to  recover  from  the  defendant  a  shot-gun,  a 
blanket  and  a  small  quantity  of  tobacco,  and  some 
other  small  articles,  which  plaintiff  claimed  belonged 
to  his  testatrix  ;  but  the  value  of  none  of  said  articles 
was  stated  in  the  affidavit,  either  separately  or  in  the 
aggregate,  but  were  found  by  the  justice  upon  the  trial 
before  him  to  be  of  the  value  of  $7.25, 

It  must  be  conceded  that  the  affidavit  was  deficient 

in  this  respect,  as  subdivision   6  of  section   lOOf), 

[']     Code  of  Civil  Procedure,  especially  provides  that" 

the  affidavit  shall  state  the  value  of  tli<?  property, 

and  this  section  is  made  {ipj>li('able  to  justices'  courts 

by  the  provisions  of  section  2920. 

The  undertaking  wa.s  also  deficient  in  that  it  was 

executed  by  only  oiie  surety,  and  two  sureties  nre 

[*]     expressly  required  by  section  IG&O,  v/hich  is  a].<() 

applicable  to  the.se  proceedings  in  justices'  courts 

made  by  section  2920. 

The  appellant  claims  that  the  proofs  show  no  de- 


CIVIL    PROCEDURE    REPORTS.  255 


Iir  V.  Schroeder. 


mand  made  before  suit  brought,  and  therefore  the 
[*]  action  could  not  be  maintained,  because  the  de- 
fendant was  in  lawful  possession  of  the  projierty. 

I  cannot  agree  with  him  in  this  conclusion,  as  the 
proofs  show  conclusively  that  a  demand  was  made  be- 
fore the  service  of  the  papers  upon  the  defendant  ; 
and  that  is  sufficient,  because  the  action  was  not  com- 
menced as  to  Jtfm,  until  the  seroice  of  the  papers  upon 
him.     {Code  Ch.  Pro.  §  2876.) 

Defendant  also  claims  that  the  judgment  should  be 
reversed  because  the  justice  included  more  than  |5 
costs  in  his  judgment  against  hiin. 

This  position  cannot  be  maintained,  as  it  was  many 
years  ago  provided  by  statute,  that  a  justice's 
[*]  judgment  should  not  be  reversed  by  reason  of  an 
error  in  taxing  costs,  and  such  is  the  law  and  prac- 
tice to-day  ;  but  further  than  this  the  justice's  return 
shows  that  only  $5  was  taxed  in  his  judgment  against 
the  defendant.' 

This  brings  us  to  a  consideration  of  the  important 
question  raised  by  this  appeal,  and  that  is  whether  the 
judgment  in  this  case  should  be  reversed  for  the  errors 
of  the  justice,  in  issuing  the  writ  of  replevin,  upon  an 
insufficient  affidavit  and  undertaking,  when  it  is  con- 
ceded that  the  summons  was  propei-ly  issued,  and 
personally  served  upon  the  defendant,  and  proper 
return  thereof,  made  by  the  officer  making  the  service. 

1  have  carefully  read  the  evidence,  and  find  nothing 
in  the  case  calling  for  a  reversal  of  the  judgment  upon 
the  merits,  and  the  foregoing  is  the  only  question  nec- 
essary to  consider  further  u[)on  this  appeal. 

So  far  as  this  court  is  concerned  the  question  is  a 
new  one,  but  I  am  cited  by  appellant's  counsel  to  the 
case  of  Friize  o.  Pulrz  (-2  N.  Y.  Civ.  Pro.  142),  which 
is  a  decision  of  the  general  term  of  the  superior  court  of 
Buffalo,  and  which  he  claims  is  decisive  of  the  princi- 
ple which  must  govern  this  case,  although  that  was  a 


266-         CIVIL   piiocp:dl'RE   reports. 


Irr  V.  SchroedtT. 


case  of  attachment ;  while  the  conns-1  foi*  the  respond- 
ent cites  the  case  of  McNeary  v.  Chase  (30  I/fin,  49 1)  ; 
which  he  claims  is  decisive  of  the  principle  which  must 
govern  and  control  tliis  case,  although  tliat  was  an 
action  where  the  snmmons  issued  by  the  justice  was 
accompanied  by  an  order  of  arrest;  answering  to  the 
warrant  of  arrest,  under  the  old  [)ractice,  and  wliich 
decision  is  substantially  contrary  to  the  holding  of  the 
superior  court,  above  stated. 

The  attachment,  the  writ  of  replevin  and  the  order 
of  arrest,  while  taking  the  place  of  the  like  j^roceed- 
ings  under  the  old   practice,  are,  as  now  [)rovided 
[']     by    the   Code   of   Civil   Procedure,  substantially 
provisional  remedies,  and  constitute  an  entirely 
new   practice  in  justices'   court,   quite   analogous    to 
the  practice  in  courts  of  record  in  such  proceedings. 
Now,  as  in  courts  of  record,  a  summons  is  issued 
in  every  case,   and  the  jurisdiction  ol"  the  court 
["]     does  not  depend  upon  the  validity  of  the  attach- 
ment, or  the  warrant  of  arrest,  or  the   f)recei)t  in 
replevin  ;  they  may  be  set  aside,  and  still  the  action 
continue  to  judgment,  if  the  summons  has  been  prop- 
erly issued  and  served  upon  the  defendant.    {Code  Civ. 
Pro.  §§  2902,  2917,  2933.) 

Provisions  are  also  made  for  motions  b\'  the  defend- 
ant to  thf*  justice  to  vacate  or  modify  the  attacliment 
{Code,  §  2901),  and  the  order  of  arrest  (§  2916),  and  for 
claiming  a  leturn  of  the  property  taken  in  replevin 
(§  2925),  in  like  m.anner  as  in  courts  of  record. 

But,  suppose  that  upon  aniotionof  this  kind  being 
made,  the  justice  errs  in  his  decision,  and  refuses  to 
vacate  the  attachment,  or  to  set  aside  the  requisition 
in  replevin,  or  the  order  of  ariest,  when  he  ought  to 
have  done  so  ;  or  does  vacate  and  set  them  aside  when 
he  ought  not  to  have  done  so  ;  and  still  proceeds  with 
the  trial,  by  virtue  of  the  jurisdiction  he  has  obtained 
from  the  issuing  and  service  of  the  summons,  and  com- 


CIVIL    PROCEDURE    REPORTS.  257 

Irr  V.  Schioeder. 

mits  no  other  error  ;  what  is  the  remedy  of  the  party, 
against  whom  the  erroneous  decision  was  made  ? 

This  is  the  precise  question  i)resented  by  this  ap- 
peal. 

It  is  the  prosecution  of  the  action  which  is  the  end 
sought,  and  it  is  the  issuing  and  service  of  the  sum- 
mons which  ffives  the  justice  jurisdiction  to  attain 
[']  this  end;  these  provision;'.!  remedies  are  merely 
incidental  to  tlie  cause  of  action,  iind  the  action 
may  proceed  with,  or  without  them  :  and  the  disposi- 
tion of  any  motion  concerning  them,  can  liave  but  lit- 
tle bearing  upon  a  proper  disposition  of  the  cause  of 
action  and  a  [)roi)er  final  judgment  therein. 

But   tlie  case  of  Fritze  ».  Pultz,  before  referred  to, 
would  seem   to  liold  that  upon  appeal  from  the 
["]     judgment,  it  should  be  reversed  for  an  error  of  the 
justice  in  granting  an  attachment  upon  an  insuffi- 
cient affidavit,  although  it  should  be  conceded,  that 
the  judgment  itself  was  proper  and  correct  upon  the 
merits  :  wliile  McMeary  ?5.  Chase,  before  referred 
[*]     to,  seems  to  hold  a  contrarj^  doctrine,  the  judge, 
while  conceding  that  under  the  old  practice  such 
error  would  require  a  reversal  of  the  judgment,  says  : 
"  This  new  provision  is  excellent.     It  obviates  the  ne- 
cessity of  reversing  a  just  judgment  merely  for  some 
little   imperfection   in   the  affidavit   or  undertaking, 
upon  which  an  order  of  arrest  was  obtained." 

These  remarks  apply  with  equal  force  to  an  attach- 
ment or  re[)levin,  and  it  appears  to  me  this  is  the 
['"]     correct  conclusion  to  be  reached  in  applying  these 
new  jjrovisions  of  the  statufes  ;  and  not  reverse  a 
coirect  and   meritorious  judgment,  where  the  justice 
had  jni'isdiction.  and   has  committed  no  error  which 
could  possibly  affect  the  merits  of  the  judgment.     But 
in  such  case,  the  motion  should  no6  be  to  dismiss 
["]     the  action,  but  to  vacate  and  set  aside  the  re- 
plevin process,  or  the  attachment  or  warrant  of 
Vol.  VI.— 17 


258  CIVIL    PROCEDURE    REPORTS. 

Irr  V.  Schroeder. 

arrest  as  the  case  may  be,  which  shall  havel>een  issued 
upon  insufficient  i)a[)ers,  and  leaving  the  action  to 
continue  to  judgment. 

In  this  case  the  defendant  raiser!  specific  objections 
to  the  papers,  claiming  that  they  were  insiil!ici(-nt 
["]  in  the  particulars  pointed  out,  but  he  asked  too 
much  when  he  asked  the  justice  to  disniiss  the 
action,  and  his  motion  was  properly  denied.  lie  should 
only  have  asked  that  the  writ  of  replevin  be  set  aside, 
upon  the  objections  which  he  made  to  the  papers,  and 
thai  motion  might  have  been  granted,  leaving  the  ac- 
tion to  continue. 

But  the  justice  having  committed  an  error  in  issu- 
ing his  replevin-piecept  ui)()n  pa peis  which  gave 
['*]  him  no  jurisdiction  to  issue  it,  and  the  si)ecific 
objections  having  been  made  by  the  appellant, 
before  the  justice,  to  the  insufficiency  of  the  papers, 
the  replevin  itself  should  beset  aside,  but  the  judg- 
ment allowed  to  stand. 

The  defendant  may  enter  a  judgment  herein,  modi- 
fying the  judgment  by  setting  aside  the  writ  of  replev- 
in issued  by  the  justice  and  reversing  his  action  in 
such  writ;  but  affirming  his  judgment  as  to  the  value 
and  disposition  of  the  propertj%  with  ten  dollars  costs 
and  three  dollars  disbursements,  making  $13  to  be 
paid  by  plaintiff  to  defendant. 


CIVIL    PROCEDURE  ^. REPORTS.  259 


White  V.  Rintoul. 


WHITE,  Respo^'Dent,  v.  RINTOUL,  Appellant. 

SuPEEioR  Court  of  the  City  of  Njnv  York,  Cham- 
bers, May,  1884.  i 

§1352. 

Undertahivg  on  appeal. — Form  of,  when  guaranteed  hy  corporation  au- 
thoi'ized  to  guarantee  undertakings. 

Wlierean  appellant  gave  an  inulertaking  to  stay  proceedings  pending 
ap|)ual,  in  which  tlie  plaintiff  and  a  company  authorized  to  guaran- 
tee bonds  and  undertakings  by  Laws  of  1881,  chapter  4SG,  were 
named  as  obligors,  and  wliicli  was  signed  by  the  i)laintiff  and  the 
president  and  secretary  of  the  company,  and  guaranteed  by  tlie 
'company, — ffeld,  that  the  said  company  was  not  competent  to 
guarantee  such  an  undertaking  so  as  to  be  accepted  in  place  of  two 
sureties;  that  the  execution  of  the  undertaking  was  insufficient  as 
to  the  said  company;  also  Held,  that  the  acknowledgment  of  the 
'execution  of  such  undertaking  by  the  president  and  secretary  of 
said  company  in  the  usual  form  of  an  acknowledgment  by  indi- 
viduals was  insufBcient. 

X:Decided  May  1,  1884.) 

Motion  by  respondent  to  disallow  an  undertaking 
and  guarantee  given  on  appeal. 

The  plaintifl  recovered  a  judgment  in  this  action 
for  $8,657,  from  which  the  defendant  appealed  to  the 
general  term  of  this  court.  To  stay  execution  pending 
appeal,  the  defendant  gave  an  undertaking,  which, 
after  reciting  the  recovery  of  the  judgment,  etc.,  con- 
tinued :  "Now  therefore,  we,  James  Rintoul  [the 
plaintiff],  of  No.  156  West  Sixteenth  street  in  the  city 
of  New  York,  and  The  Fidelity  and  Casualty  Company 
of  New  York,  do  hereby  pursuant  to  the  statute  in 
such  case  made  and  provided,  undertake  that  the  said 
appellant  will  pay  all  costs  and  damages  which  may 
be  awarded  against  said  appellant  on  said  appeal,  not 


'260  CIVIL    PROCEDUIIE    RKPORTS. 

White  V.  Kintoul. 

exceeding  live  hundred  dollars,  and  do  also  undertake 
that  if  the  said  judgment  so  appealed  from,  or  any 
part  thereof  be  affirmed,  or  the  ajipeal  be  dismissed, 
the  said  appellant  will  \n\y  the  amount  directed  to  be 
paid  by  the  said  judgment,  or  the  j^art  of  such  amount 
as  to  which  the  said  judgment  shall  be  affirmed,  if  it 
be  affirmed  only  in  part,  and  all  damages  and  costs 
which  shall  be  awarded  against  said  appellant  on  the 
said  appeal. 

"Dated  New  York,  April  12,  1884. 

"  J.   HiNTOUL. 

'^VVm.  M.  RrciiAKDs,  Pres. 
"John  M.  Cranio,  Sec'y." 

An  affidavit  of  justification  in  tht^  usual  form  was 
annexed  signed  by  the  i)laintiff  solely,  wherein  he 
swore  that  he  was  a  "house-holder  within  this  state 
.  .  .  worth  the  sum  of  $5,000  over  all  his  debts,"  etc. 

The  acknowledgment  on  the  undertaking  (exclusive 
of  the  notary's  signature),  read  as  follows  : 

"City  and  County  of  New  York,  ss  : 

"I  certify,  that  on  this  12th  day  of  April  1884, 
before  me  personally  api)enred  the  above  named  James 
Rintoul  and  William  M.  Richards,  Pres't.,  and  Jolui 
M.  Crane,  Sec'5^,  to  me  severally  known  and  known  to 
nie  to  be  the  individuals  desciibfd  in,  and  who  execu- 
ted the  above  undertaking,  and  they  seveiall}'  duly 
acknowledged  tome  that  they  had  executed  the  same." 

xVnnexed  to  the  undertaking  was  a  guaraiity  en- 
titled in  the  action  of  which  the  following  is  a  copy, 

"  In  i)ursuance  of  a  provision  of  an  act  f)f  ihe  legis- 
lature of  the  state  of  New  Yoik  entitled  'An  act  to 
facilitate  the  giving  of  bonds  required  by  law,'  passed 
June  13,  1881,  The  Fidelity  and  Casualty  Company 
of  New  York,  in  consideration  of  one  dollar  to  it  in 
hand   paid,    the   receipt  whereof  is  hereby  acknowl- 


CIVIL    PROCEDURE    REPORTS.  261 

Wliite  ».  Ilintoul. 

edged,  hereby  guarantees  the  performance  of  the  cov- 
enants and  conditions  of  the  within  undeitaking. 

"In  witness  whereof,  the  said  Fidelity  jind  Casual- 
ty Company  has  caused  its  corporate  s<^nl  to  be  hereto 
affixed,  and  the  same  to  be  attested  by  tlie  signature 
of  its  president  and  secretary. 

[l.  s,]  "  Wm.  M.  Richards,  President. 

"John  M.  CitANE,  Secretary." 

*'  City  and  connty  of  New  York,  ss  ; 

"On  the  12th  day  of  April  1884,  before  me  i)erson- 
ally  appeared  William  M.  Richards,  to  me  known, 
who  being  by  me  duly  sworn,  did  depose  and  say,  that 
lie  resides  in  the  city  of  Brooklyn,  N.  Y.,  that  he  is 
j)resident  of  the  Fidelity  and  Casualty  Company  of 
New  York,  the  corporation  described  in  and  which 
executed  the  foregoing  instrument ;  that  he  knows  the 
corporate  seal  of  said  company  ;  that  the  seal  affixed 
to  said  instrument  is  such  corporate  seal  ;  that  it  was 
affixed  by  order  of  the  Board  of  Directors  of  said  com- 
pany, and  that  he  signed  said  instrument,  as  president 
of  said  com])any,  by  like  authority,  and  that  the  lia- 
bilities of  said  company  do  not  exceed  its  assets  as 
ascertained  in  the  manner  provided  in  section  8,  chap- 
ter 480,  of  the  iSession  Laws  of  1881. 

[l,  s.]  "  Jamks  C.  Mkriam, 

"Notary  Public  New  York  county." 

The  plaintiff  excepted  to  the  sufficiency  of  the  sure- 
ties and  to  the  form  of  the  undertaking,  and  at  the 
time  iixed  for  the  justification  made  this  motion, 

A.  Jl.  Robertson  {Robertson,  Harmon  &  Cuppia, 
attorneys),  for  the  motion. 

George  W.  Dillaicay  {Damnport  &  Leeds,  attor- 
neys), for  appellant,  opposed- 


262  CIVIL'   PROCEDURE     REPORTS;* 

White  V.  Rintoul. 

Charles  A.  PJingsten,  for  The  Fidelity  and  Casu-' 
alty  Company,  opposed. 

Skdqwick,    Cb.   J.,  granted   the  motion,   without 
writin<^  any  opinion,   and  an  order  was  entered,  the- 
concluding  part  of  which  read  as  follows  : 

"  Ordered,  that  said  undertaking  and  guaranty  be 
and  they  hereby  are-  disallowed,  and   that  the  justifi- 
cation be,  and  it  hereby  is  dismissed,  on   the  ground 
that  said  undertaking  is  not  joint  and  several,  and 
that  said  compan^y  is  not  competent  to  guarantee  an 
undertaking  given  by  an  appellant  under  section  1352" 
of  the  Code  of  Civil  Procedure,  so  as  to  be  accepted  in 
place  of  two  sureties,  and  that  the  execution  of  the^ 
undertaking,  not  of  the  guaianty,  is  insufficient  as  to 
the  Fidelity  and  Casualty  Company,  and  that  the  ac-- 
knowledgment  appended  to  tlie  undertaking,  not  that 
appended  to  the  guaranty,   is  insufficient  as   to  the^'^ 
company. 

"  It  is  further  ordered,  that  the  appellant  may  have 
three  days  after  the  entry  and  seivice  of  this  order  to^ 
give  a  new  undertaking  to  stay  plaintiirs  proceedings, 
such  as  is  required  by  section  1852 of  the  Code  of  Civil 
Procedure,  and  a  guaranty  such  as  is  provided  for  by 
chapter  480  of  the  Laws  of  1881.  That  such  undeitak-- 
ing  may  be  executed  by  two  sureties  without  jiistilica- 
tion,  and  that  upon  proper  jusiification  by  said  cou>. 
pany  upon  exception  said  bond  will  be  approved." 


CIVIL    PROCEDURE    REPORTS.  263 


Ross  V.  \S\''<i. 


ROSS,  Respondent  ?).  WIGrG,  Appellant. 

SuPKEME    Court,   Fourth    Depaht.ment,    General 
Term,  June,  1884. 

§§550,  636,  719,  844. 

Affidavits  taken  tcitJiout- the  state. —  Who  authorized  toJ.ahe.  —  Form  of 
certi£.cate  to. — Attachment. —  Order  of  arrest. —  When  not  vacated 
where  prima  facie  case  made  out.  —  Contract. —  W/ien  not  ad- 
judged  illegal. — Doing  lusinens  under  fictitious  name. 

Wliere  a  motion  to  vacate  an  attaclimeut  or  order  of  arrest  is  founded 
only  on  the  original  papers,  the  statements  therein  contained  are, 
for  tile  purposes  of  an  appeal  from  an  order  denjing  the  motion  to 
be  regarded  as  true,  and  if  tliey  establisii  a  prima  facie  case  against 
the  defendant  he  slu'idd  be  required  to  satisfactorily  answer  or  ex- 
plain them  before  asking  that  the  attachment  or  order  of  arrest  be 
set  aside.  ['] 

A  contract  will  not  be  adjudged  illegal  when  it  is  capable  of  a  con- 
struction making  it  valid. [^J 

Where  one  Ross,  a  resident  of  Canada,  for  along  time  cirried  on 
business  in  this  state  under  the  name  of  Ross  &  Co.,  without  hav- 
ing any  partner,  and  in  tiiat  name  sold  the  business  by  a  written 
agreement,  d.ited  and  executed  at  Qiit;becy  Canada,  which  did  not, 
in  terms,  provide  where  it  was  to  be  performed,  but  bound  the 
])nrchaser  to  "remit  "the  p.iyments  to  be  made,  to  said  Ross, — 
Held,  that  no  place  of  perform:iiice  being  tixeti,  the  rigiits  :ind  lia- 
bilities of  the  parties  under  it  were  to  be  determined  by  the  lex 
loci  eu  coiitractu!i  j\^'\  that  ihe  statutes  of  this  state  proliibiiing  per- 
sons from  transacting  bu-iness  under  fictitious  names,  are  penal  laws 
and  have  no  extra-terriiorial  force;|^]  that  if  the  contract  was  valid 
by  the  laws  of  Canada,  where  it  was  made  and  dated,  it  was  vali<l 
everywhere  ;[■]  and  the  burden  of  sliowing  that  it  was  invalid  by 
tht'  laws  of  that  jjiace  rested  upon  the  one  attacking  its  validity. ['j 

One  who  acqtiires  property  in  a  business  conducted  under  a  iictitious 
name.in  violaticm  of  tiie  law,  does  not  forfeit  the  property  thereby 
acquired  or  place  it  outside  of  legal  protection  ;[■•]  it  is  his,  and  is 
subject  to  sale  an'd  transfer  by  any  of  the  modes  known  to  the 
usage  of  business.[*l  Whetlier  a  contract  for  the  sale  of  property 
so  acquired,  and  providing  for  payment  therefor  by  tlie  purchaser, 


264  CIVIL    PROCEDURE    REPORTS. 

Ross  V.  Wigg. 

made  m  such  fictitious  name,  aud  executed  ami  to  be  porformed 
within  this  state,  would  be  invalid,  query  ?[*] 

The  statute  {lMW»of  ISJo,  cliap.  281),  prohibiting  the  transaction  of 
business  under  fictitioits  names,  dors  not  apply  to  commercial  eo- 
partnersliips  located  ali.d  transacting  business  in  foreign  countries, 
and,  it  seems,  a  single  person  located  and  transacting  businessuuder 
a  firm  name  in  a  foreign  country,  is  authorized  to  use  such  firm 
name  in  carrying  on  u  branch  of  that  business  in  this  stiite.[*] 

By  section  844  of  ti.e  Code  of  Civil  Procedure,  which  provides  for 
the  taking  of  affidavits  without  this  state  to  be  used  within  the 
state,  any  officer  authorized  by  the  laws  of  this  state  to  take  and 
certify  the  acktiowledgment  and  proof  of  deeds  without  the  state, 
to  be  recorded  in  this  state,  is  authorizeii  to  lake  an  affidavit  wirh- 
out  the  state  to  be  used  in  an  action  in  this st ate. [*J  Koi^i.ett,  J., 
dissenting,  Held,  that  section  844  vested  the  ptnver  of  taking  affi- 
davits to  be  used  in  the  courts  of  this  state,  in  all  officers  of  other 
states  authorized  by  the  laws  of  (he  siate  of  their  residence,  to  take 
and  certify  the  acknowledgment  and  proof  of  deeds  to  be  recorded 
in  the  state  of  the  officer's  residence,  and  that  the  section  does  not 
authorize  officials  of  other  states  to  take  affidavits  to  be  read  in  the 
courts  of  this  state,  unless  they  are  authoiized  by  the  laws  of  the 
state  of  tlieir  residence,  to  take  acknowledgments  of  deeds  to  bo 
recorded  in  the  state  of  their  residence,  e.xi:ept  in  cases  specially 
authorized  by  statute.  |'^'*J  The  legi-slalioa  on  the  subject  re- 
viewed. ['*,"] 

A  judge  of  any  court  of  record  within  the  dominion  ot  Canada,  being 
authorized  to  take  acknowledgments,  may  take  an  affidavit  to  be 
used  in  a  court  of  this  state  [•] 

An  officer  taking  an  atlidavit  without  this  state  for  use  within  the 
sta'e,  IS  not  required  to  state  in  the  jurat  that  he  knows  the  affiant 
or  has  satisfactory  evidence  of  J»is  identity. ['"j 

Where  an  affidavit  taken  witiiout  the  state  was  accompmied  by  a  cer- 
tificate of  the  clerk  of  a  court  of  re(;ord  within  the  county  in  which 
•  it  was  taken,  that  the  nanie  of  the  judge  who  took  the  affidavit  was 
to  him  "  well  known  to  bo  IIk;  auiograj)!!  signa  ureoi'  said  judue,'* 
— Held,  that  this  was  a  si»l>st:»ntial  «ronipli.uice  with  the  statute  re- 
quiring a  rertitlcate  by  t'le  clerk  thai  "  he  \c  well  acquainted  witii 
the  handwriting  of  such  ju<lge  and  verilj  believes  his  signature 
genuine."["J  contra.  Ft)LLETT,  J.,  <iis8enting.["'J 

Instance  of  an  action  in  wfiicli  i\  priirta  facie  vax^c  for  the  granting  of 
a  warrant  of  attachment  and  order  of  arrest,  on  the  ground  that 
the  defendant  was  about  to  dispose  ol,  aud  remove  fnina  this  state 


CIVIL     PROCEDURE     REPORTS.  2C5 

;"'    "     ^ , 

Ross  V.  Wigg. 

his  property,  for  the  purpose  of  defraud i tig  tlie  pluiutiflf,  was  made 
out.[","] 
(Decided  October,  1884.) 

Appeal  from  an  order  made  at  chambers  in  Oswego 
county  denying  a  motion  to  vacate  an  order  of  arrest 
and  a  warrant  of  attachment. 

On  tlie  ISth  of  December  1882,  the  phiintiff  resided 
at  Quebec,  Canada,  and  had  for  a  long  tim  )  carried  on 
business  at  that  place  under  the  name  of  "Ross  & 
Co."  without  having  any  partner.  For  six  years  X)iior 
to  that  dale  he  had  also  been  engaged  in  the  lumber 
business  at  Oswego,  New  York,  under  said  firm  name, 
having  no  partner  therein.  On  that  day,  at  Quebec, 
Canada,  by  a  written  agreement  then  and  there  dated, 
he  in  the  name  of  "  Ross  &  Co."  sold  said  lumber 
business  at  Oswego,  N.  Y.,  to  the  defendant  for  the 
sum  of  $87,743.32,  of  which  no  part  was  paid  down  or 
secured.  The  defendant,.vvho  at  the  time  was  the  con- 
fidential agent  and  manager  of  the  plaintiff,  agreed  to 
remit  to  him  all  collections  and  receipts  from  said 
business  weekly,  as  fast  as  received.  By  the  terms  of 
the  agreement  he  was  peimilted  to  use  not  exceeding 
$8,000  from  such  collections,  to  erect  a  dock,  which 
sum  he  was  to  rei)ay  within  two  years  from  January 
1,  1883,  with  interest  at  seven  i)ercent.,  i)ayai)le  semi- 
annually, and  a  commission  of  two  and  one  half  per 
cent,  per  annum,  interest  on  tlie  purchase  price  was  to 
be  computed  every  six  months,  at  the  rate  of  seven 
jier  cent,  per  annum,  and  tlie  whole  amount,  except- 
ing the  eight  thousand,  was  to  be  paid  within  nine 
months  from  January  1,  1883.'  The  defendant  was 
also  to  pay  all  of  the  debts  of  the  plaintiff,  contracted 
in  said  business  and  unpaid  at  the  time  of  the  sale. 
Subsequent  to  such  sale,  the  plaintiff  paid  on  account 
of  such  outstanding  debts  two  drafts,  drawn  inNovem- 


2«ff  CIVIL    PROCEDURE    REPORTS. 


ber  1883,  amounting  to  $6,531.25,  the  defendant  hav- 
ing neglected  and  refused  to  pay  the  siinie.  Between 
December  21,  1882,  and  June  23,  1883.  the  plaintiff,  by 
the  name  of  "Ross  &  Co."  accepted,  for  the  accommo- 
dation of  the  defendant,  six  drafts,  amounting  to 
$17,735.23, -and  paid  the  same  as  they  matured  ;  each 
of  the  eiglit  drafts  above  named  was  drawn,  dattcl,  and 
made  payable  in  Canada  upon  this  indebtedness, 
amounting  in  all  to  the  sum  of  $111,024.05,  exclusive 
of  the  $8,000  not  yet  due.  The  defendant  paid 
$29,791.21,  the  last  considerable  payment  having  been 
made  August  1,  1883. 

About  the  first  of  March  1884,  the  plaintiff  com- 
menced this  action,  which  is  u[)on  contract,  to  lecover 
from  the  defendant  the  balance  nnj)aid  of  $81,233.44, 
and  upon  a  verified  complaint,  alleging  the  foregoitig 
among  other  facts,  and  the  affidavits  of  the  pLiiniilf 
and  one  Pousette,  setting  forth  said  cause  of  action, 
and  tending^  to  show  that  the  defendant  was  aI)out  to 
dispose  of  and  remove  his  property,  with  the  intent  to 
defraud  his  creditors,  an  order  of  arrest  and  a  war- 
rant of  attachment  were  granted  by  Justice  Ciiuuciiill 
on  the  7th  of  March  1884.  The  sheriff  of  Oswego 
county  thereupon  attached  certain  ])roi)erty  of  tlie  de- 
fendant, but  of  what  value  does  not  appear,  and  on 
the  10th  of  March,  1884,  arrested  the  defendant  and 
confined  him  in  jail  of  said  county,  in  default  of  the 
bail  required  by  the  order  of  arrest,  to  wit,  $20,000. 
The  affidavit  of  said  Ponsetto  was  taken  before  a 
jiuige  in  Canada,  whose  certificate  was  as  follows,  viz  : 

"  The  above  affidavit  was  subscribed  and  sworn  to 
before  me,  the  undersigned,  the  judge  of  the  comity 
court  of  the  county  of  Yoik,  the  same  being  a  court 
of  record  of  the  Pi'ovince  of  Ontario,  having  a  seal  at 
the  court  house  in  Toronto,  Ontario,  this  Maich  14, 
1884,  signed,  'John  Boyd,  Judge  C.  C.  C.  Y.'"  A 
clerk's  certificate  was  attached  in  these  words,  viz: 


CTVIL    PROCEDURE    REPORTS.  2«T 

Ross  V.  Wigg. 

"Dominion  of  Canada,  Province  of  Ontario,  county 
of  York,  ss.  I,  Walter  McKinzie,  who  am  a  clerk  of 
the  county  court  of  the  county  of  York  in  said  Prov- 
ince of  Ontario,  hereby  certify  that  said  county  court 
of  the  county  of  York,  is  a  court  of  record  of  said 
Province  of  Ontario,  in  the  Dominion  of  Canada,  and 
that  said  court  has  a  seal ;  that  John  Boyd,  Esq.,  is 
the  judge  of  said  court,  and  that  the  name  of  said 
judge  John  Boyd  subscribed  to  the  above  jurat  is  to 
me  known  to  be  the  autograph  signature  of  said  judge 
John  Boyd. 

"  Witness  my  hand  and  the  seal  of  said  court,  at 
the  city  of  Toionto,  in  said  province  of  Ontario,  this 
March  4, 1884. 

(Signed)  "Waltek  McKinzie, 

[l.  s.]  Clerk  of  the   County   Court  of  the 

County  of  York." 

On  the  19th  of  March,  1884,  the  defendant  moved 
to  vacate  both  the  order  of  arrest  and  the  warrant  of 
attachment,  upon  the  same  papers  on  which  they  were 
granted,  and  before  the  same  justice  who  granted 
them.  The  motion  was  heard  at  chambers,  March  22, 
and  denied  March  28,  1884,  but  without  prejudice  to 
any  application  that  might  be  made  upon  affidavits  or 
other  proof  to  vacate  said  provisional  remedies,  or  to 
compel  the  plaintiff  to  elect  between  them  under  sec- 
tion 719  of  tlie  Code  of  Civil  Procedure,  or  to  reduce 
the  amount  of  bail  required  by  the  order  of  arrest. 


* 


*  Several  grounds  were  considered  in  deciding  tlie  motion,  and 
urged  in  tlic  briefs  on  iippenl  {vide  extracts  therefrom,  S7ipra),  from  the 
order  setting  aside  the  order  of  arrest  and  warrant  of  attaciiment, 
•which  are  not  referred  to  in  the  opinions  written  at  general  terra.  The 
opinion  of  tlie  judge  who  decided  the  motion  at  chambers  is,  there- 
fore, here  reported. 


268  CIVIL    PROCEDURE    REPORTS, 


From  the  order  denying  said  motion  tlie  defend:) nt 
brings  this  appeal, 

George  N.  Burt  and  TF.  F.  Cogswell^  for  defend- 
ant, appellant. 

Tliere  is  no  compliance  with  snpreme  court  x\\\<^ 
25;  there  is  no  statement  that  no  previous  applica- 

IJOSS  V.  V»'IGG. 

Supreme  Codkt,  Oswkgo  County,  Ciiambkus,  Maucii,  1884. 

§§  />")(),  Uijfi,  711),  844. 

Attachment.—  Order  of  (irrest.  —  Grounds  fur  vncating. — Affidavit  sworn 
to  without  the  attite. — Doiiiy  IniKinens  under  fictitious  name. 

It  is  not  iinpeiixtive  that  tliu  com  t  v;u-atf  a  warrant  of  attaclimeiit  and 
Older  of  arrest  because  the  atiidavirs  on  wliicli  I  liey  weie  granteil 
do  not  comply  with  the  rule  retjuiring  a  staKinenf.  that  no  prior 
application  has  been  made  for  the  order;  it  is  in  llie  discretion  of 
the  court. ['J 

The  fact  that  a  warrant  of  attachment  or  order  of  arrest  wliich  suffi- 
ciently states  the  ground  on  which  it  was  j,Mantcd,  states  in  addi- 
tion, matters  which  are  not  made  {^rounds  for  its  i.ssue  does  not 
vitiate  it.[2] 

An  affidavit  taken  without  the  state  which  is  accompanied  by  a  cer- 
tificate of  a  clerk  of  a  court  of  record  of  the  place  wliere  it  was 
taken  that  the  name  <>f  the  judj,'e  wiio  took  llic  atlidavit  w:is  to  him 
'•  well  known  to  be  the  aurourM|)h  si;:natuie  of  said  judge"  is  not 
properly  certified  for  use  in  a  court  of  this  state. (''j 

An  agreement  or  acceptance  made  in  Canada,  which  violates  the  laws 
of  this  state  against  usury  and  against  the  use  nf  tlie  words  *'«&  Co." 
when  not  rcpresentiuL;  an  actual  partner,  will  not  be  held  invalid 
unless  invalid  by  the  laws  of  Canada,  and  that  fact  must  he  shown; 
it  will  not  be  infcrrred.  [*] 

On  an  application  for  an  attachment,  an  affidavit  by  the  plaintifT  that 
"there  is  now  due  todepom-nt  from  said  defendant  on  said  indcbt-  . 
edness  over  and  above  all  offsets  and  counterclaims  the  sum  of."  j 
etc.,  substantially  complies  with  the  requiiemenc  of  section  030  of 
the  Code  of  Civil  Procedure  that  there  must  be  an  affidavit  show- 
ing "that  the  plaintiff  is  entitled  to  recover  a  sum  stated  therein 
over  and  above  all  counterclaims  known  to  liim.''[*] 

Instance  of  an  action  in  which  the  papers  on  whii-Ji  an  attachment 
and  order  of  arrest  were  granted,  stated  and  showed  sufficient 
grounds  therefor.  [*] 


CIVIL    PROCEDURE    REPORTS.  269 

Ross  V.  Wigj?. 

tion  has  been  made  for  such  order  or  warrant,  and  for 
this  omission  they  should  be  set  aside.  See  Code, 
§  17 ;  Rule  25 ;  Schachne  d.  Kayser,  6Q  Hoio.  Pr.  395. 
The  judge  below  holds  that  a  non-compliance  with  this 

Tlie  discretion  given  in  section  719  of  the  Code  of  Civil  Procedure, 
as  to  vacating  one  of  two  or  more  provisional  remedies  granted  in 
the  same  action,  was  undoubtedly  intended  to  enable  a  court  or 
judge  to  limit  a  party  to  one  or  tiie  other  remedy  when  either  the 
one  or  the  otiier  siiould  appear  to  be  sufficient  to  secure  or  satisfy 
the  plaintiff's  claim,  or  wlien,  upon  the  case  as  presented  to  the 
court,  it  should  seem  to  be  oppressive  to  allow  both  remedies. ['] 
{Decided  March  22,  1884.) 

Motion  to  vacate  an  attachment  and  order  of  arrest. 
The  facts  are  fully  stated  in  the  report  of  the  general  term  opin- 
ions, supra. 

Qeoi'ge  N.  Burt  and  W.  A.  Poacher,  for  the  defendant  and  motion. 
C.  G.  French  and  W.  II.  Kenyon,  for  the  plaintiff,  opposed. 
CntrRCHiLl^,  J. — Tliis  is  a  motion    made  upon   the  original  papers 
to  set  aside  the  order  of  arrest  and  warrant  of  attachment  heretofore 
granted  in  this  action. 

In  deciding  the  motion  no  papers  are  considered  except  those 
upon  which  the  order  and  wurnint  were  gr.mted.  Cwf^/e.  §§  5G8 -C83. 
Among  tlie  grounds  originally  stated  for  the  motion,  were  some 
relating  to  the  undertakings,  whicli  have  been  amended  upon  the 
application  of  the  persons  executing  ihcm,  which  amendments  soeni 
to  make  tiie  undertakings  valid  from  the  time  of  their  execution. 
Code,  §  730. 

These  grounds  were  not  pressed  by  the  counsel  for  the  defendant 
on  the  argument,  and  are  not  considered  now. 
As  to  the  other  grounds  for  this  niotitni : 

1.   Rule  2.'5   does   not  make  it  imperative  on   the  court  to  va- 
[']     cate  an  order  founded  on  aflidavits  not  complyiirg  with  tlie  rule, 
but  leaves  it  to  its  discretion.    Bean  v.  Tonneiie,  1  N.  Y.  Civ.  Pro. 
83. 

No  previous  application  is  claimed  to  have  been  made.  The  war- 
rant and  order  be:ir  tiie  same  date,  with  the  verification  of  the  com- 
plaint and  all  but  one  of  the  affidavits  used,  making  it  unlikely  any 
previous  application  had   been  made. 

The  delay  in  making  this  motion  may  be  considered.  Altogether 
this  does  not  seem  a  case  for  the  court  in  its  discretion,  ou  this  ground 
to  vacate  these  orders.   ■ 


«70  €TVIL    PROCEDURE    REPORTS. 

Ross  V.  Wigg. 

-rule  was  a  matter  of  discretion,  and  has  exerciseil 
that  discretion  in  this  case  to  uphold  the  arrest  and. 
attachment.  This  discretion  ought  not  to  be  exes- 
•<;ised  to  sustain  an  order  of  arrest.     This  motion  was 

2.  The  waVrant  of  attaclmreiit  states  that  flie  dcfendiint  *'  lias  dis- 
closed of  ond  removed  from  this  state,  and  is  about  to  dispose  of  nnd 
remove  from  lias  stnte  liis  property,  .  .  ,  for  the  purpose  of  de- 
•frauding  said  plaintilf.'- 

The  order  of  arrest  states  tlmt  the  defeirdant  "is  about  to  dispose 
of  and  remove  from  this  state  his  property,  .  .  .  for  tiie  purpose 
of  defrauding  said  plaiutilf." 

Eacii  of  tliese  is  a  ground   for  tlie  warrant  or  order  stated  \n 
CJ     the  language  of  the  Code,  and  tiierefore,  I  think,  sufficiently 
stated.      CW<?,  §  550,  sub.  2;  and  §  G*3G,  sul).  2. 

Tiie  fact  tliat  eacli  statc*s,  in  addition,  matters  which  are  not  made 
grounds  for  the  issue  of  citiier  does  not  vitiate  tliem. 

3.  Tiie  affidavit  of  Alfred  P.  Poussette  is  not  certified  as  re- 
{']     quired  by  section  844  of  the  Code,  which    now  governs  the  tak- 
ing of  affidavits  in  foreign  states,  to  be  used  in  this  state. 

Before  any  legislation  on  tlie  subject,  courts  were  liberal  in  receiv- 
ing affidavits  verified  in  other  states.  Welsh  p.  Hill,  2  Johns.  378; 
Marshall  v.  Mott,  13  Johns.  423  ;  Tacker  v.  Ladd,  4  Cow.  47;  1  Duer 
Pr.  100-312-318. 

But  since  the  legislature  has  made  provision  for  the  taking  of 
snch  affidavits,  and  has  pointed  out  the  officers  before  whom  they 
may  be  taken  and  the  mode  of  their  authentication,  their  action  must 
gpovern. 

This  motion  is  therefore  decided  as  though  the  affidavit  of  Pous- 
sette were  not  in  the  case. 

4.  It  is  claimed  that  the  agreement  and  acceptance  set  up  in  the 
complaint  are  void  as  against  the  provisions  of  our  statute,  against 
the  use  of  the  words  "&  Co."  wlicn  not  representing  an  actual  part- 
ner {IjUWS  1833,  chap.  281),  and  that  the  ngreement  is  also  void  for 
usury. 

But  it  appears  from  the  papers  on  which   the  orihr  nnd    warrant 

w^ere  issued,  that  the  agreement  and  acceptance  arc  all  Canadian 

[*]     contracts  and  arc  to  he  construed  by  and   as  to  their  validity, 

arc  governed    by  the  laws  of   Canada.     If  they  an;  invalid  under 

those  laws,  that  fact  must  be  shown.     It  does  not  appear  from  the 

papers  and  will  not  l)e  inferred. 

As  to  the  use  of  the  words  "  «&  Co.,"  it  is  doubtful  if  the  agree- 
ment and  acceptances  would  be  held  invalid  under  the  laws  of  this 


CJTVIL    PROCEDURE    REPORTS.  271 

Ros3  V.  Wigg. 

made  as  promptly  as  it  reasonably  could  be.  Tlje 
case  of  Schachne  v.  Kayser  holds  (Daniels,  J.),  that 
a  non-compliance  with  this  rule  is  good  ground  to 
move  to  vacate  ord^-r  of  airest,  if  made  in  time,  and 

state.  Laics  1841),  clia|).  347;  St-.cldard  ».  Key,  G3  I/ow.  V',7 ;  Ziin- 
raennan  v.  Eriiaid,   83  K  Y.  74;  Ilyan  v.  Hardy,  20  Hun,  176. 

5.  It  is  claimed  that  the  affiriavits  are  not  sirfficieiit  to  sKisiain  the 
"warrant  of  attachment,  because  not  complying  wiih  section  G3C  of 
the  Code,  which  reads:  ''The  affidavit  must  show  that  the  plaintifl 
is  entitled  to  recover  a  sum  stated  therein  over  and  above  all  couriter- 

-claims  known  to  him." 

Tlie affidavit  of  plaintiff,  after  stating  the  facts  as  to  tlie  indebt- 
edness claimed,  adds:   "  And  tliat  there  is  now  due   to  deponent 
{']     from  said  defendant  on  said  indebtedness  over  and  above  all  off- 
sets   and   countercl.iims,    the    sum    of   $81,233.44,    and    interest 
thereon  from  Marcli  1,  1884." 

A  statement  very  similar  has  been  held  by  the  general  term  of  the 
fourth  department,  a  substantial  compliance  with  the  Code,  and 
therefore,  sufficient.     Alford  v.  Cobb,  28  Hun,  22. 

6.  The   last  ground  for  vacating  the  warrant  of  attachment  and 
order  of  nrrest  is  that  tlie  affidavits  upon  which  they  were  granted, 

[']     do  not  state  facts  and  circumstances  to  autiiorize  their  issue. 

The  grounds  for  their  issue,  as  stated  in  them,  are  the  same,  and 
are: 

1st.  That  the  defendant  has  disposed  of  and  removed  his  property 
from  the  state  for  the  purpose  of  defrauding  tlie  plaint ifT. 

2d.  That  hcTis  about  to  dispose  of  and  remove  from  the  state  his 
property,  for  the  same  purpose.  The  first  of  these  grounds  is  suffi- 
cient to  sustain  the  warrant  of  attachment,  and  tlie  second  is  sufficient 
to  sustain  either  or  both  of  these  processes.      Code,  §§  550,  63G,  719. 

1.  Tlie  papers  presented  fail  to  sustain  the  first  of  these  grounds. 
They  do  not  show  the  defendant  to  have  disposed  of  or  sold  his  prop-* 
erty  at  less  than  market  rates,  or  in  any  other  than  the  ordinary  modes, 
or  to  have  concealed,  or  to  have  attempted  to  conceal  from  the 
plaintiff  the  nature  or  extent  of  his  business  transactions. 

The  disposition  which  the  papers  show  the  defendant  to  have 
made  of  his  property  neither  by  logical  deduction  or  fair  inference 
can  be  said  to  have  been  made  with  intent  to  de'raud  the  plaintiff  or 
any  other  creditor. 

2.  As  to  the  second  ground,  it  appears  from  the  papers  that  in 
the  last  week  in  February,  1884,  the  defendant  was  indebted  to  the 
plaintiff  in  upwards  of  $80,000  past  due,  and  that  two  drafto  for 


272  CIVIL    PROCEDURE     REPORTS. 

Hoss  V.  Wi<:g. 

before  case  lias  bf^en  noticed  for  trial.  This  defect, 
taken  together  with  the  otlier  defects  in  the  papers, 
stated  in  Point  II.,  warrant  the  exercise  of  the  discre- 
tion of  tlie  court,  to  vacate  both  writs.  Schachne  v. 
Kayser,  66  IJow.  Pr.  395;  Bean  v.  Tonnelie,  1  JV.  Y. 
Civ.  Pro.  33. 

$18,000  and  upwards  accepted  l)y  tlio  plain! id  for  tho  iiccomnindatifm 
of  tlie  defendant  and  upnn  his  promise  to  provide  funds  for  tlieir  pay- 
ment at  maturity  were  about  to  mature. 

In  that  week  the  plaintiff  called  upon  the  defendant  to  know  if 
the  latter  proposed  to  furnish  funds  to  reiire  the  drafts.  The  de- 
fendant at  first  offered  to  do  this  if  the  plaintiff  would  give  him  an 
additional  credit  by  allowing  him  to  draw  on  the  plaintiff  for  the 
same  amount;  this  offer  he  afterward  withdrew,  but  offered  to  fur- 
nisli  $10,000  for  that  purpose  if  the  plaintiff  would  give  him  an  afl- 
ditional  credit  for  that  sum  as  above.  These  oft<-rs  tiie  plaintiff 
declined,  but  urged  the  defendant  to  pay  the  above  sums  to  apply  on 
bis  indebtedness  to  the  plaintiff. 

The  defendant  said  he  had  $20,000  which  he  could  pay  thereon 
but  which  he  refused  to  do.  That  he  was  intei-.ding  to  go  to  Eng- 
land, that  he  should  hang  on  to  the  money,  and  that  if  tin;  |)laintiff 
pushed  him  for  payment,  he  should  not  spare  him,  but  make  him  lose 
all  he  could. 

The  affidavit  of  plaintiff  wi'h  the  telegrams  attached,  seems 
within  the  rule  approved  by  the  general  term  of  this  de|)artment,  in 
Bennett  v.  Edwards  (27  Hun,  352),  and  uncontradicted  and  unex- 
plained, to  be  sufficient  toestai)lish  for  all  purposes  of  the  application 
for  thdse  process<'s;  that  on  the  7th  day  of  Mareh.  1884,  tin-  defend- 
ant was  in  New  York  intending  to  sail  on  the  next  day  lor  England. 
Taken  altogether  these  facts  seem  to  justify  tlie  conclusion  that  the 
'defendant  was  about  to  dispose  of  or  to  remove  from  the  stale  his 
property,  with  intent  to  defraud  the  plaintitf. 

7.  Should  the  plaintiff  be  required  to  elect  which  of  these  reme- 
dies he  will  retain  ami  thereupon  the  other  be  dismissed? 

The  discretion  given  by  section  719  was  intended  undoubtedly  to 
enable  the  court  or  judge  to  limit  a  |)arty  to  one  or  the  other 
PJ  remedy,  wlien  eitlicr  the  one  or  the  other  should  appear  to  be 
sufficient  to  secure  or  eatisfy  the  plaintiff's  claim,  or  when  upon 
the  case  as  presented  to  the  court  it  shouM  seem  to  be  oppressive  to 
allow  both  remedies.  Rockford,  &c.  v.  Boody,  56  K  T.  450,  400; 
Duncan  v.  Guest,  2  iV.   T.  Civ.  Pro.  275. 


CIVIL    PROCEDURE    REPORTS.  273 

Ross  V.  Wigg. 

There  i§  no  compliance  with  section  636  of  the 
Code  of  Civil  Procedure  to  wit :  tliwrn  is  no  statement 
that  the  phiinriff  is  entitled  to  recover  the  snm  stated 
therein  over  and  ahove  all  coitnier- claims  known  to 
liim.  Code,  g  636.  sub.  2  ;  Miiiray  v.  Hankin,  3  N.  Y. 
Civ.  Pro.  342  ;  Smith  v.  Davis,  3  Jd.  74;  Crippen  v. 
Schillin^er,  30  /J/ui,  248  ;  Donnell  v.  Williams,  21 
IIu/i,  216;  Kiippert  r,.  liinig,  1  iY.  F.  C7o.  Pro.  411  ; 
Neal  0.  Sacks,  15  iV.    Y.    Weddy  Dig.  476. 

The  allegations  in  the  complaint  show  that  the 
plaintiff  cj.iuiot  maintain  this  action.  (1.)  It  affiNTia- 
tively  appears  that  tlie  piairititf  without  any  actual 
I>artiier  w:ts  doing  business  at  Oswego  under  the  firm 
name  of  Ross  &  Co.,  and  has  been  for  many  years  last 
past.  This  is  in  direct  violation  of  the  statute.  3  R. 
S.  (7  Ed.)  \K  223a  (LaiDS  1833,  chap.  281.)  It  reads  as 
follows  :  §  1.  "No  person  shall  hereafter  transact  bus- 
iness in  the  name  of  a  i)artner  not  interested  in  the 
firm,  and  where  the  designation  'and  company'  or  '& 
Co.'  is  used  it  shall  represent  an  actual  partner  or 
partners."  §2.  "Any  person  offending  against  the 
provisions  of  this  act  shall  upon  conviction  thereof  be 
deemed  guilty  of  a  misdemeanor,  and  be  punished  by 
a  line  not  exceeding  SKOOO."  Swords  v.  Owen,  43 
How.  Pr.  176  ;  Bank  of  U.  S.  v.  Owens,  2  Peters 
{U.  S.  Sup.  CL)  5117;  Hallot  d.  Haroon,  14  Johns. 
290  ;  Pennington  v.  rownseiid,  7  Wend.  276  ;  O'Toole  v. 
Garvin,  1  ILuu  02;   Wood  v.  Krie  R.  R.  Co.,  72  iY.  Y. 

Wliot'.KT  tills  is  a  |t<)i)cr  case  f  >r  tlie  exercise  of  tint  <lisci(tion 
does  not  •tnpciir  !"rom  tlio  |»a;i"!'..  iipnti  wlucu  I  he  warrant  and  order 
wcif  grann'fi,  wljicli  are  tH'j  oi.lv  iiajK-rs  l)elorc  the  court. 

Tlie  uinti'>n  f'l  sol  iisiJo  tlie  warnnit  of  atT.icliment  and  order  of 
arresi  are  tlu-iefore  deii!e<l  witii  «plO  costs,  !mt  wiilioiit  prejudice  to 
any  application  tnai  may  nereaiter  l)c  inadii  to  vacate  or  set  aside  tli© 
same  upon  alhdavits,  or  to  any  motion  tliat  may  be  made  to  com{>el 
tlie  plaintiff  to  m  il\c  an  election  under  section  719  of  tlio  Code,  or  to 
reduce  the  amount  of  Ijail  required  by  tlie  order  oi  arrest. 
Vol.  VI. -18 


274  CIVIL    PROCEDURE    REPORTS. 

Ross  V.  WifTg.  ■ 

d 

196;  Zimmerman  v.  Erhard,  83  Id.  74.  Doing  what 
the  law  forbids  cuu  not  be  enforced,  whether  malum 
in  se  or  only  malum  prohibitiini.  B:ink  of  Unired 
States  V.  Owen,  supra.  The  papers  upon  which  rliey 
were  granted  show  altirmatively  that  tliei(?  is  no  cause 
of  action.  Manton  i\  Poole,  67  Barh.  330;  Smith  t>. 
Davis,  3  N.  Y.  Civ.  Fro.  7-k ;  Murray  o.  Hankin,  3  Id. 
342. 

Again  it  will  be  presumed  that  the  laws  of  Canada 
are  like  our  own  until  the  contrary  appears.  2  Par- 
sons on  Contracts^  5«2. 

C.  G.  French  and  IF.  II.  Kenyon  ( TF.  II.  Kenyon, 
attorney),  for  plaintiff-iespondent. 

Rule  i?5  simply  gives  to  ilie  court  power  to  decide 
in  its  discretion  whether  or  not  an  order  sh;ill  in  such 
case  be  set  aside.  This  discretionary  power  has  been 
exercised  by  refusing  to  vacate  the  older.  Bean  v. 
Tonnelle,  1  N.  Y.  Civ.  Pro.  33.     .     .     . 

A  contract  made  in  a  foreign  state  will  be  pre- 
sniTied  lawful  unless  shown  otherwise.  Opinion 
of  CiiuiiciiiLL,  J.  [Note  ante,  p.  2Q,S.]  Cutler  v. 
Wright,  22  N.  Y.  472;  Merchants'  Baidv  v.  Griswold, 
72  7^.472.  .  .  .  Our  statute  in  regard  to  the  use 
of  fictitious  names  has  no  application  to  these  Cana- 
dian contracts.  Opinion  of  Judge  Ciiuuciiill.  [Note 
ante,  p.  268.]  Stoddard  v.  Key.  62  IIoio.  137-144,  145 ; 
Ryan  v.  Hardy,  2<6  Hun.  136  ;  Zimmerman  ??.  Erhard, 
83  N.  Y.  74.  A  supplemental  statute  provides  that  it 
shall  not  apply  to  foreign  commercial  houses.  Laws'^of 
1849,  cliap.  347  (4  Edin.  S'laL  47)2).  The  original 
statute  in  express  terms  forbids  one  peison  to  use  a 
firm  name.  Hence  the  modifying  statute  must  be 
construed  as  authorizing  a  single  foreigner  doing 
business  under  a  firm  name,  to  transact  business  here 
under  such  name.  Laws  of  1833,  chap.  281  (4  Bdm. 
Stat.  448)  •    Laws  of  1849,  chap.   347   (4  £dm.   JStat. 


CIVIL    PROGEDVniE    REPOTITS.  275 

Ross  ».  Wigg. 

462).  This  contract  of  sale,  if  made  Lere,  would  not 
be  within  the  statute.  It  is  not  made  in  transacting 
a  business,  but  inclosing  it  out.  Opinion  of  Juclge 
CiiuiiciiiLL.  [Note  a7it€,  p.  268.]  Wood  v.  Erie  Rail- 
way, 72  2V.  Y.  196.  -  (■ 

Vann,  J.-^As  the  motion  to  vacate  was  founded 
only  on  the  original  papers,  the  statements  contained 
therein  are,  for  the  purposes  of  this  appeal,  to  be  re- 
garded as  true,  and,  if  they  establish  a  prima  facie 
[']  case  against  the  defendant,  he  should  be  required 
to  satisfactorily  answer  or  explain  them  before 
asking  that  important  remedies  for  the  temporar3'-  se- 
curity of  the  plaintiff  should  be  set  aside. 

It  does  not  appear  that  any  of  the  several  contracts 
set  forth  in  the  comi)laint  were  entered  into,  in  viola- 
tion of  the  usury  laws  of  this  state  or  of  the  statute 
prohibiting  persons  from  transacting  business  under 
fictitious  names.     Ml.  8.  (3  Ed.)  2^)3,  Lmcs  o/1833, 
[']     chap.  281  ;   Laws  of  1849,  chap.  347.     These  stat- 
utes are  penal  laws  and  have  no  extra  teiritorial 
force.    The  Western  T.  &  C.  Co.  v.  Kiiderhouse,  87  N. 
Y.  430.    A  contract  will  not  be  adjudged  illegal  when  it 
is   capable   of    a   construction   making  it    valid. 
{*]     Lorillard  ^).  Clyde,  66  JV.  Y.  8S4  ;  Ormes  -c.  Dauchy 
82  iV^.  Y.  443.     The  principal  contract  upon  which 
this  action  is  founded  is  the  bill  of  sale,  which  was 
both  dated  and  executed  at  Quebec,  Canada  ;  it  pur- 
ports to  transfer  a  lumber  business  at  Oswego,  in  this 
state,  including  stock  on  hand,  accounts  and  mortgages. 
The  plaintiff,  a  resident  of   Canada,   had  conducted 
this  business  at  Oswego  under  the  name  of  "  Ross  & 
Co."  and  apparently  had  thus  acquired  the  property 
and   interests  transferred.      Assuming    that   he  had 
carried  on  the  business  in  violation  of  the  law,  he 
[*]     did  not  forfeit  the  property  he  had  acquired  there- 
by or  place  it  outside  of  legal  protection.     Wood 


276  CIVIL    PROCEDURE    REPORTS. 

Ross  V.  Wigg. 

V.  ErieR.  R.  Co., 72  N.  Y.  190,  200.  If  he  violated  the 
statute  he  was  liable  to  punishment  therefor,  but  the 
property  thus  acquired  was  still  his,  aud  was  subject 
to  sale  and  transfer  by  any  of  the  modes  known  to 
the  usage  of  business,  as  the  bill  of   sale   was  given, 

not  to  carry  on  but  to  tei  minate  and  close  out  the 
[']     lumber  business,  it  is  dout ful  if  it  could,  be  liekl 

invalid,  even  if  ithad  been  ex«^cii ted  and  was  to  be 
performed  within  this  state,  sucli  a  transaction  does 
not  eome  within  the  evil  which  the  statute  was  de- 
signed to  prevent,  as  it  does  not  impose  upon  the 
public  or  induce  credit  to  be  given  upon  a  false  basi.**. 
Wood  V.  Erie  R.  R.  Co.,  supra.  Moreover,  the  act  in 
question  {Laws  of  1833,  chap.  281),  docs  Jiot  apj)ly  to. 

commercial  copartnerships locnied  iind  traiisjicting 
[•]     business  in  foreign  countries,  as  they  are  ])ermil  ted 

to  use  the  styles  or  tirms  of  their  houses  in  this 
state.  Laws  of  1849,  chap.  347.  The  two  statutes 
when  construed  together  appear  to  authorize  a  single 
person  located  and  tiansaciing  business  under  a  firm 
name  in  a  foreign  country  to  use  such  lirm  name  in 
carrjdng  on  a  branch  of  that  business  in  this  state. 

The  bill  of  sale  does  not  in  terms  state  where  it  is 
to  be  performed,  but  as  it  bin<ls  the  defendant  to 
"remit"  to  the  plaint/ff,  weekly,  all  collections,  the 
presumption  is,  that  he  was  to  remit  to  the  jilaintiff  at 
his  place  of  residence,  but  if  it  is  silent  ;ts  to  the  j.lac«-  (.f 

performance,  ihe  lights  :ind  lial»ilities  of  the  jiar- 
[']     ties  imder  it  are  to  be  dererniined   by  the  lev  Joel 

eo  coiitraclus  (2  Par.'ionx  on  ConJract,  oS2  ;  Pouie- 
roy  ?).  Ainsworth.  '•I'-llinrb.  118,  130;  Northiup  t\  Foot, 
14  Wend.  240)  ;  iherefoie,  if  it  was  valid  by  ilie  l:nvs  of 
Canada,  where  it  was  niade  and  d:ited,  it  is  v:ilid 
eveiywiiere  (Merchants'  B:ink  of  Canada  v.  Griswokl, 
72  N.  Y.  474;  Potter  c.  Tallman,  35  Barh.  182  ;  Story 
on  Cojijlict  of  Laws^  §  282)  ;  the  burden  of  showing 
th:it  it  was  invalid  by  the  laws  of  that  lu'ovince  rests 


CIVIL    PROCEDURE     REPORTS.  277 

Uoss  V.  Wigg. 

upon  the  defendant  (Cutler  ?).  Wiiglit,  22  JV.  Y.  4:12  \ 
Thompson  v.  Kirclumi,  8  Term-  R.  189).  All  of  tlie  con- 
tracts exce[)t  the  bill  of  sale  were  by  their  terms  to  be 
performed  in  Can:  da  ;  the  acceptances  were  all  drawn, 
dated,  made  payable,  and  actually  paid  by  the  ])laint- 
iff  there.  Whether,  therefore,  the  a(Uion  is  based 
upon  the  drafts  themselves,  or  upon  the  implied  prom- 
ise to  pay,  springing  from  the  fact  of  payment  by  the 
l)laintiff  for  the  benefit  of  the  defendant  and  at  his 
request,  they  are  Canadian  contracts,  and  are  to  be 
governed  by  the  laws  of  the  place  where  they  were 
made. 

The  affidavit  of  Alfred  P.  Pousette  was  considered 
at  the  time  of  the  original  application  for  these  [)iovis- 
ional  remedies,  but  not  upon  the  motion  to  vacate,  as 
the  learned  justice  held  that  it  was  not  certified  as  re- 
quired by  section  844  of  the  Code  of  Civil  Proced- 
[']  ure.  B}-  that  section,  any  oflicer  authoiized  by  the 
laws  of  this  state  to  take  and  certify  the  acktiowl- 
edgment  and  proof  of  deeds  without  the  state,  to  be 
recorded  in  this  state,  is  authorized  to  take  an  affidavit 
without  the  state  to  be  used  in  an  action  in  this  state. 
Tiie  section  is  new,  and.  its  object,  according  to  the 
report  of  the  commissioners  who  piepared  it,  was  to 
empower  all  officers  authoiized  to  take  acknowledg- 
ments to  administer  oaths  (vol.  8  Commissioners'  Re- 
port, §  817,  note;  Throoj)' s  Code,  %  844);  the  woid 
"state  "  as  used  in  tliis  section  in  each  instance,  means 
the  state  of  New  York  ;  it  was  enacted  with  reference 
to  the  laws  of  this  state,  not  of  some  other  state.  The 
section  does  not  mean,  as  claimed  by  the  appellant, 
that  the  affidavit  may  be  taken  before  an  officer  au- 
thorized by  the  laws  of  a  foreign  state,  oi-  the  state  of 
his  residence,  to  take  and  certify  the  acknowledgment 
of  deeds.  The  expression,  as  used  in  this  section, 
*'  before  an  officei-  authorized  by  the  laws  of  the  state 
to  take  and  certify  tlie  acknowledgment  and  proof  of 


278  CIVIL'    PROCEDURE  '  HEPORTS: 

Ross  V.  Wigg. 

deeds,  means  an  officer  there  authorijjed  by  the  laws  of' 
this  state/'  There  are  many  such  officers,  and  many 
statutes  have  been  passed  upon  the  subject,  which  are 
in  force  at  the  time  of  tlie  enactment  of  the  Code  of 
Civil  Procedure  (3  R.  S.  [7rh  Ed.]  221  ;  Laws  of  1S29, 
chap.  222  ;  Laios  of  1S39,  chap.  205;  Latcs  of  1845, 
chap.  109  ;  Laios  of  1847,  chap.  170  ;  Laics  of  1848^ 
chap.  195;  T^aws  r^/"  1850,  chap.  270;  Laios  of  1858, 
chap.  259  ;  Laws  of  1863,  chap.  248  ;  Laws  of  1870^ 
chap.  208  ;  Laws  of  187'^,  chap.  136),  By  some  of  these 
statutes  the  officers  authorized  to  take  acknowledg- 
ments are  empowered  to  take  affidavits,  and  the  com- 
missioners in  their  nf)te  to  section  817  (now  §  844),  say  : 
*'  it  is  thought  better  that  all  officers  authorized  to  take- 
acknowledgments  should  be  empowered  to  administer 
oaths,  and  that  their  acts  should  be  authenticated  in 
the  sanie  manner  in  both  cases.  We  think  that  this  is 
what  the  legislature  intended  in  enacting  the  section 
in  question. 

By  chapter  208  Laws  of  1870,  acknowledgment  of 

deeds  may  be  taken  before  the  judge  of  any 
[*]     court  of  record  within  the  dominion  of  Canada. 

By  virtue  of  this  act  and  of  section  844  of  the 
Code,  Judge  Boyd  was  authorized  to  take  the  affidavit 
of  Mr.  Pousette,  but  a  question  is  raised  as  to  its  au- 
thentication. The  act  of  1870  {supra).  ]>rovides  that, 
no  acknowledgment  shall  be  valid  unles.s  the  offict-r 
taking  the  same  knows,  or  has  safi.sfa(!tory  evidence 
that  the  pei^on  mtiking  it  is  the  individual  desciihed 
in  and  who  executed  the  instruinenr.  It  also  requires 
that  a  <'ertiticate  of  the  clerk  should  Ik?  attached,  aii- 
thentirafing  the  court,  office,  officer,  his  handwriting, 
&c.,  it  is  insisted  that  the  affidavit  was  not  j)ro|)eiIy 
certified,  because  the  judge  did  not  state  that  he  knew 
Mr.  Pousette  or  had  satisfactory  evidence  of  his  iden- 
tity. Section  844  of  the  Code  does  not  require  that  the 
certificate  of  the  judge  should  state  this.  The  statute  of 


CIVIL    PROCEDURE     REPOirrS.  279 


1870,  by  imi)lic:i(ion  nt  lejist,  (]ue«  r<  cxuiie  it  in 
['"]  the  case  of  deeds.  Npjuly  all  otlu-r  statutes  re- 
lating to  the  acknowledgiuent  of  deeds,  whether 
taken  within  or  without  the  stale,  also  require  it,  yet 
it  is  not  required  in  the  jurat  of«  an  jiffidavit.  Section 
844  does  not  state  wiiat  the  ceitiii'.-ate  of  the  judge 
must  contain,  but  simply  requires  that  the  affidavit 
must  be  "certified  by  him  to  have  been  taken  before 
him."  It  does  require  lliat  the  judge's  certificate  should 
be  authenticated  by  a  certificate  of  the  clerk  as  to  his 
official  character  and  the  genuineness  of  hi^<  j-'gnalure. 
In  other  words,  the  form  of  the  cleik's  certificate  is, 
wliile  the  form  of  the  judge's  certificate  is  not,  pie- 
scribed  by  the  statute,  so  far  as  an  affidavit  is  con- 
cerned. Thus  the  analogy  of  all  othei- statutes  relat- 
ing to  jurats  and  acknowledgment  is  observed,  we  do 
not  hold  that  it  would  be  proper  for  an  officer,  either 
within  or  without  the  state,  to  take  an  affidavit  with-, 
out  either  knowing  the  affiant  or  having  satisfactory 
proof  of  his  identity.  We  simply  hold  that  such  fact 
need  not  be  certified  by  the  officer  in  the  juiat. 

The  certificate  of  the  cleik  litei-aliy  follows  the 
requirements  of  the  act  of  1870  in  all  respects,  except 
that  instead  of  stating  in  the  language  of  the  statute 
that  "he  is  well  acquainted  with  the  handwriting  of 
such  judge,  and  verily  believes  his  signature  gen- 
["J  nine,"  he  cei titles  that  "  the  name  of  said  judge, 
John  Boyd,  subscribed  to  the  above  jurat,  is  to 
me  known  to  be  the  autograph  signature  of  said  judgn 
John  Boyd."  We  think  this  is  a  substantial  compli- 
ance with  the  statute,  because  it  not  oidy  implies  all 
tl.at  the  statute  requires,  but  includes  nioie,  and  fur- 
nishes a  better  safeguard  (Meriam  t.  Harsen,  4 
Edioards  Ch.  70  ;  affirmed  2  Barb.  Ch.  232  ;  Jackson 
?),  Guman,  2  Coio.  552  ;  Jackson  c.  Livingston,  8 
Johns.  149. 

The  moving  papers  show   that  the  defendant  was 


280  CIVIL    PROCEDURE    REPORTS. 


indebted  to  the  plaintiff  in  the  sum  of  $89,233.44,  of 
which  all  but  $8,000  had  been  past  due  for  live 
["]  months,  during  which  period  only  $^)0  had  been 
paid  thereon  ;  that  this  debt  was  for  tiie  purcliase 
price  of  and  for  moneys  advanced  in  a  lumber  business 
that  he  was  conducting,  and  from  whicli  he  received 
large  sums  of  money;  that  instead  ofj  remitting  his 
collections  to  the  plaintiff  weekly,  as  he  had  agreed 
in  writing  to  do,  he  retained  substantially  all  that  he 
received  during  the  period  of  seven  months  imme- 
diately preceding  the  granting  of  the  piovi>sional 
remedies  in  question;  and  although  he  admitted  that 
he  had  large  sums  on  hand,  yet  he  refused  to  pay  the 
same  to  the  i)laintiff  ;  that  he  ceased  to  make  pa}''- 
ments  on  this  debt  in  August,  1883,  yet  continued 
after  that  to  sell  and  reduce  his  stock  and  property, 
until  not  more  than  $40,000  worth  ien>ained,  that  he 
liad  substantially  no  property  aside  from  said  busi- 
ness which  he  had  purchased  of  the  plaintiff  wholly 
on  credit,  in  December,  1882,  and  which  he  had 
agreed  to  ])aj'^  for  by  October,  1882,  with  the  excep- 
tion of  $8,000,  that  in  March,  1884,  when  the  provis- 
ional remedies  were  granted  he  was  owing  the  plaint- 
iff $89,233.44,  or  $1,490.12  more  than  the  original 
purchase  price,  so  that  his  indebtedness  to  the  plaint- 
iff during  the  fourteen  months  that  he  had  carried  on 
the  business  had  increased  instead  of  diminished  ; 
that  in  Noveml)er,  1883,  he  refused  to  give  phiintiff  a 
mortgage  upon  a  dock  then  rerrently  constructed  by 
him  for  tlie  amount  of  plaintiff's  money  invested 
therein  ;  that  during  the  same  month,  and  alter  his 
large  debt  to  the  plaintiff  was  [)ast  due,  he  attempted 
to  settle  $10,000  that  he  had  taken  fron)  the  lumber 
business  upon  the  lady  to  whom  he  was  engaged  to  be 
married  and  actually  p:iidover  ilie  money  to  trustees 
for  her  benelir,  stating  that  he  did  it  so  that  if  any- 
thing happened  in  regard  to  his  business  she    would 


CIVIL    PROCEDURE    REPORTS.  281 


Ross  V.  Wigj?. 


have  that  sum  to  fall  back  upon  ;  that  at  the  same  time 
ho  further  stated  that  he  had  phantiff  in  his  hands, 
and  could  do  with  him  as  he  liked  ;  that  lie  never  in- 
tended to  pay  him  at  the  time  agieed  upon  and  should 
not  pay  him  until  he  got  ready,  and  that  he  intended 
tobiin^j;  plaintiff  to  his  terms,  and  could  tix  his  pro))' 
erty  in  tvveniy-four  hours  so  that  he  could  get  nothing 
out  of  it  ;  that  said  S10,()()0  was  subsequently  re))aid 
him  by  the  trustees  upon  the  refusal  of  the  lady's 
father  to  allow  the  maniage  to  t;dve  place;  that  in 
January,  1884,  he  said  to  phiintiff,  ''Why  do  you 
watch  me  so?  This  is  the  fourth  time  you  have  been 
here  ;  if  you  are  not  satisfied,  buy  me  out,"  and  upon 
the  plaintiff  then  offering  to  buy  him  out,  he  refused 
to  sell,  dehed  the  plaintiff,  and  told  him  to  do  his 
best ;  that  in  February,  1884,  he  admitted  that  he  had 
$20,000  that  he  conkl  pay  to  phiintiff,  but  refused  to 
do  so  unless  the  plaintiff  would  give  him  credit  to 
draw  for  a  like  amount,  and  when  this  was  declined 
he  said  to  plaintiff,  "If  ycui  push  me  for  payment  I 
will  not  spare  you,  I  will  make  you  lose  all  I  can  ;" 
thiit  subsequently  he  withdrew  even  that  offer,  but 
offered  to  pay  $10,000  if  plaintiff  would  allow  him  to 
draw  for  a  like  amount,  and  when  the  plaintiff  de- 
clined this  but  asked  him  to  pay  $10,000  o!i  his  debt, 
he  refused,  saying  that  he  would  hang  on  to  the 
money;  that  on  February  12th,  1884,  he  t(")ld  said 
Pousette  that  he  intended  to  sail  for  England  in  about 
ten  days;  that  on  the  17ih  of  that  month  he  mort- 
gaged to  his  brother  for  $1,700  a  piece  of  real  estate 
worth  $4,000  but  which  was  subject  to  prior  mortgage 
for  $2,270  ;  that  the  defendant  is  a  widower  with  one 
child,  and  never  resided  in  the  United  States  until  he 
purchased  said  business  ;  thnt  on  the  fourth  of  March 
he  was  in  the  city  of  New  York  with  three  trunks, 
and  on  the  sixth  and  seventh  of  March  plaintiff  re 
ceived  telegrams  from   his  agent   to   look    after    the 


282  CIVIL    PROCEDURE    REPORTa 


movements  of  defendant  in  that  city,  statin*?  that  the 
defendant  was  expected  to  sail  for  Europe  on  the 
eighth;  that  on  the  seventh  the  clerk  of  ihe  hotel 
where  the  defendant  boarded  in  Oswego  informed  the 
plaintiff  that  the  defendant  had  gone  to  Europe  ;  that 
the  week  before  the  defendant  told  th«  plaintiff  that 
he  intended  to  go  to  England. 

We  think  that  these  with  other  facts  not  recited, 

made  out  a  pn'uia  /acie case,  and  gave  the  justice 
["]    jurisdiction.     Where  a  debt(n-  who  owes  a  large 

debt  that  is  past  due,  and  has  a  huge  sum  of 
money  that  he  ought  to  pay  upon  that  debt,  refuses 
to  pay  anything  to  his  creditor  u[)on  demand,  without 
giving  any  explanation  for  such  lefusal,  slight  evi- 
dence of  a  threatened  removal  or  disi)Osiiioi5  of  his 
propert}'^  will  authorize  the  inferencn  of  fraudulent 
intent.  Where  a  num  of  very  small  estate  is  largely 
indebted,  and  attempts  to  settle  upon  his  imended 
wife  a  large  sum  of  money  wholly  disproportioned  to 
his  property,  so  that  if  anything  should  happen  to  his 
business  she  would  have  something  lo  fall  back  u[)on, 
it  is  evidence  of  fraudulent  intent.  Where  a  debtor 
declares  that  he  does  not  intend  lo  pay  his  chief  cred- 
itor until  he  gets  ready,  but  does  intend  to  biing  him 
to  terms,  and  that  he  can  speedily  lix  his  ]iro|)erty  so 
that  such  creditor  can  get  nothing  out  of  it,  and  sub- 
sequently, when  asked  to  pay  something  on  account 
from  nearly  $20,()()()  he  had  on  hand,  leliises  and 
threatens  that  if  pushed  for  j)ayn)ent  he  will  make 
said  creditor  lose  all  he  can,  such  declarations  and 
threats  are  not  consistent  with  an  honest  purpose,  and 
without  proof  of  any  further  act  tend  to  show  that  he 
is  about  to  remove  or  dispose  of  his  proi)erty,  with  in- 
tent to  defraud  (Gasheiie  o.  Ap[)le,  14  /!////.  P/\  64; 
Livermore  v).  Rhodes,  27  Iloto.  Pr.  C)06).  When,  under 
all  these  circumstances,  it  further  appears  that,  the 
debtor,  having  recently  stated  that  he  was  going  to 


CIVIL    PROCEDURE    REPORTS.  283 

i  ■  Ross  V.  Wigg. 

England,  gives  a  mortgage  for  $1,700  to  his  brother, 
leaves  his  business,  and  is  found  in  the  city  of  New 
York  v^ith  three  trunks,  and  with  $20,000  in  money 
either  in  his  possession  or  unaccounted  for,  apparently 
intending  to  sail  for  England  the  next  day,  we  think 
that  the  conditions  of  the  statute  relating  to  orders  of 
arrest  and  warrants  of  attachment  are  fully  complied 
with,  and  that  it  is  incumbent  upon  the  defendant  to 
answer  or  explain  these  allegations  before  a  provis- 
ional remedy  based  thereon  is  set  aside.  The  order 
appealed  from  should  be  affirmed  with  costs  and  dis- 
bursements. Order  affirmed,  with  costs  and  disburse- 
ments. 

Hardin,  P.  J.,  concurred. 

• 

FoLLETT,  J.  (Dissenting.) — The  affidavit  of  Pousette 
was  verified  before  a  judge  of  a  county  court  of  the 
province  of  Ontario,  which  court  has  a  seal.  The  clerk 
of  the  court  certified  under  seal,  that  the  person  before 
whom  the  affidavit  was  taken,  was  at  the  time  a  judge 
of  the  court,  and  that  the  signature  is  genuine,  but 
fails  to  certify  that  the  judge  was  authorized  by  the 
laws  of  the  province,  to  take  and  certify  the  acknowl- 
edgment and  proof  of  deeds  to  be  recorded  in  that 
province. 

Section  25,  2  R.  8.  396,  authorizing  affidavits  to  be 
taken  in  foreign  countries  before  a  judge  of  a  court 
['*]  having  a  seal,  was  repealed  by  chap.  417,  Laios  of 
1877.  Affidavits  may  now  be  taken  in  foreign 
countries  before  commissioners  appointed  pursuant  to 
chapter  136,  Laws  of  1875  (3  R.  8.  [7tli  Ed.]  2230),  or 
before  the  officers  authorized  by  the  fifth  and  sixth 
sections  of  chapter  3,  part  2nd,  of  the  revised  statutes 
(1  R.  8.  Ibl),  to  take  the  ])roof  and  acknowledgments 
of  deeds  conveying  real  estate,  and  also  by  an\'  consul 
or  vice-consul  or  minister  resident  of  the  United  States 


284  CIVIL    PROCEDURE    REPORTS. 

Ross  V.  Wigfi. 

apltointed  to  reside  at  any  foieigii  \nnt  or  [)l;ice.  Laws 
o/*1854.  chap.  206. 

It  in  assumed  by  the  counsel  for  rlie  inspcctive 
parties  that  the  uci-d  "^tiite"  in  seciion  844  of  the 
Code  of  Civil  Procedure,  embraces  foreign  countries, 
and  that  the  section  is  !ipi)]icable  to  affidavits  tnkeu 
without  tlie  United  States,  which  I  gieally  doubt. 
But,  conceding  the  correctness  of  the  assumjition  for 
the  purposes  of  this  case,  I  thiidi  the  affidavit  is  not 
properly  certilied. 

An  affidnvit  verified  before  an  officer  of  nnother 
state  cannot  be  used  in  an  action  or  s[)fccial  proceeding 
in  this  state, — except  where  it  is  otherwise  spec- 
['"]  ially  prescribed  by  law, — unless  the  officer  before 
whom  the  affidavit  is  veiilied  is  authorized  by  tlie 
law  of  his  state  to  tal'e  and  certif}'  the  acknowledg- 
ment and  proofs  of  deeds  to  be  recorded  in  his  state  ; 
and  the  official  character  of  the  officer,  tlie  genuine- 
ness of  the  signature  and  that  he  is  authorized  to  take 
and  certifj"  the  acknowledgment  and  i)ioof  ()f  deeds 
to  be  recorded  in  his  state,  must  be  certified  under 
the  name  and  official  seal  of  the  clerk,  register,  re- 
corder or  a  prothonotary  of  the  county  in  which  such 
officer  resides,  or  b}'  the  clerk  of  any  couit  thereof 
having  a  seal.  Code  Cicil  Procedure,  §  844  ;  Laws  of 
1848,  chap.  195,  as  amended  by  chap.  557,  Laws  of 
1867,  §  R.  -S'.  (7  Ed.)  2224.  This  section  of  the  Code 
evidently  has  reference  to  the  statutes  cited,  and  they 
must  be  read  and  construed  together. 

Chapter  208,  Laws  of  1870,  authorizes  the  officer 
before  whom  the  questioned  affidavit  was  taken  totalvB 
the  acknowledgment  of  deeds  to  be  recorded  in  this 
state.  The  argument  is  that  by  the  section  of  the 
Code  above  cited,  the  authority  to  take  affidavits  to  be 
used  in  the  courts  of  this  state  is  vested  in,  and  lim- 
ited to  such  officials  of  other  states  as  are  by  the  stat- 
utes of   this  state  authorized   to   take  acknowledge 


CIVIL     PROCEDURE     REPORTS.  285 


Ross  V.  NVigg. 


merits  by  virtue  of  holding  certain  designated  offices 
in  other  states.  I  think  the  intention  was  to  vest  the 
power  of  taking  affidavits  in  all  officers  of  other  states 
authorized  by  the  laws  of  the  state  of  their  residence, 

to  take  and  certify  the  acknowledgment  and 
["]     proof  of  deeds  to  oe  recorded  in  the  state  of  the 

officer's  residence,  and  that  the  section  does  not 
authorize  officials  of  other  states  to  take  affidavits  to 
be  read  in  the  courts  of  this  state,  unless  they  are 
authorized  by  the  laws  of  the  srate  of  their  residence 
to  take  acknowledgments  of  deeds  to  be  recorded  in 
the  state  of  their  residence,  except  in  cases  specially 
authorized  by  statute. 

The  clerk  of  a  county,  or  of  a  court  of  another  state 
could  not  have  official  knowledge  that  a  particular 
officer  within  his  jurisdiction  was  autliorized  by  the 
laws  of  this  state  to  take  the  acknowledgment  of 
deeds  and  could  not  make  the  required  ceitificate. 
Some  light  may  be  thrown  on  this  section  and  the 

reason  for  it,  by  biieliy  consideiing  the  course  of 
["]     legislation  on  the  subject  of    j'lcknowledgments 

taken  in  other  states  atid  territories. 
Authority'  to  take  acknowledgments  has  from 
time  to  time  been  conferred  by  the  statutes  of  this 
state  upon  desigiiated  officials  cf  other  states  and  ter- 
ritories. But  it  was  found  that  officers  accustomed  to 
the  discharge  of  such  duties  were  designated  by- 
different  official  titles  in  the  vaiious  slates  and  terri- 
tories, and  it  was  inconvenient  to  designate  appropriate 
officials  in  all  of  the  states  and  territoiies  by  their 
official  titles.  To  avoid  tliis  difficulty  and  to  enlarge 
the  number  of  officials  who  should  ]K)ssess  this  au- 
thoi'ity,  chap.  195,  Laws  of  1S4.S  was  passed — and 
amended  by  chap.  557,  Laws  of  I8G7 — vesting  the 
power  to  take  acknowledgments  of  instruments  to  be 
recoided  and  read  in  evidence  in  this  state,  in  any 
officer  of  any  other  state  or  territory  authorized  by 


286  CIVIT.    PROCEDURE    REPORTS. 

Bnnies  v.  Gil  more. 

the  laws  thereof  to  take  the  i)roc)f  and  acknowledge- 
ment of  deeds. 

It  was  the  intention  of  the  legislature  not  to  re- 
strict but  to  enlarge  the  class  of  officials  of  other 
states  authorized  to  take  and  certify  afTidavits  to  he 
used  in  tliis  state.  The  affidavit  of  Pousselte 
["J  verified  March  4,  1884.  is  not  certified  as  requited 
by  the  section  of  the  Code  above  cited  and  cannot 
be  considered  on  this  appeal. 

This  construction  of  section  844  is  in  accordance 
with  Phelps  v.  Phelps,  6  A'.  Y.  Cin.  Pro.  117;  aff'd,  'S2 
Hun,  642;  Williams  v.  Waddell,  H  N.  7.  Civ.  Pro. 
191 ;  Harris  v.  Durkee,  fi  Id.  376.  Excluding  the  affi- 
davit of  Poussette,  the  evidence  is  insufficient  to  sus- 
tain the. order  of  arrest  and  attachment.  The  order  ot 
the  special  term  denying  the  motion  to  vacate  the 
order  of  arrest  and  set  aside  the  warrant  of  attach- 
ment should  be  reversed  with  costs. 


BARNES  V.  GILMORE. 


Supreme  Court,  Onkida  County,   Special  Term, 
June,  1884. 

§§  500,  501. 

Pleading.  — Counterclaim,    when  svjfficient. — Tenant  thnyinrj  landlord'^ 

title. — lies  adjudicata. — Complaint  in  action  t"  net  aside 

coiicei/ance,    and    acircement    to    recouccy    on    the 

ground  that  tltey  are  an   usurious  mortyage. 

TliR  counterclaim  permitted  by  section  500  of  the  Code  of  Civil  Pro- 
cedure, must  tend  in  some  way  todiniinisli  or  defeat  the  plaiiiliff^s 
recovery,  and,  except  in  an  action  on  contract,  arisin^ij  out  of  Jhe 
contract  or  transaction  set  forth  in  the  complaint  as  the  foundation 


GTVIL    PROCEDURE    REPORTS.  '  287 

Barnes  «.  Gilmore. 

of  the  plaintiif' s  claim,  or  connected  witli  the  subject  of  the  ac- 
tion.['j 

In  an  action  to  set  aside  a  deed  of  real  property  and  a  contract  to  re- 
cctnvey,  on  tlie  ground  that  they  were  in  fact  a  mortgage  given  to 
secure  an  usurious  h)aii,  ami  for  an  accounting  for  rents  and  prolita 
received  by  the  defendant  while  holding  under  such  deed,  a  claim 
for  certain  rents  alleged  to  be  due  the  defendant  from  tiie  plaintiff 
for  use  of  a  part  of  the  preini^ies  during  a  part  of  the  period  the 
.defendant  held  under  said  deed  is  properly  pleaded  as  a  counter 
claim.  P] 

Where  one  B.  conveyed  certain  real  property  to  one  G.,  and  took 
from  him  an  agrci'ment  to  reconvey,  and  subsequently  leased  a  por- 
tion of  the  premises  so  conveyed, — Held,  that  although  the  deed 
and  agreement  were  in  fact  a  mortgage  mailu  in  pursuance  of  an 
usurious  agreement  and  therefore,  void,  when  B.  made  a  new  con- 
tract aoceptii',g  the  defendant  as  her  landlord,  she  was  estopped  so 
long  as  she  remained  in  undisturbed  possession  under  that  wntract 
from  denying  G.'s  title;  that  she  could  not  set  up  the  invalidity  of 
the  deed  in  summtu-y  proceedings  to  recover  possession  of  the 
premises  for  non-payment  of  rent  due  under  the  lease,  nor  would 
an  adjudication  as  to  the  validity  of  the  deed  made,  in  such  pro^ 
ceeding  be  res  adjudiaita^  and  a  bar  to  an  iiction  in  equity,  brought 
by  B.  against  G.  to  set  aside  the  deed.[^,^,"j 

Where  a  compUint  alleged  that  a  conveyance  of  real  property  and  a 
contract  to  reconvey  were,  in  fact,  a  mortgage  to  secure  a  certain 
usurious  loan,  and  that  the  loan  was  made  by  the  settlement  by  the 
defendant,  after  such  conveyance,  of  certain  debts  owing  by  the 
plaintid,  which,  together  with  a  doubtful  claim  against  the  plaint- 
iff's husband,  were  to  be  paid  the  defendant  in  full  by  lier,  as  a 
condition  of  such  reconveyance  notwithstanding  any  rebate  he 
might  secure  from  any  debt  in  settling  it,  and  that  this  mode  of 
making  the  loan  was  devised  to  rover  tiie  usury, — JTcW,  that  the 
complaint  alleged  a  cause  of  action;  that  the  fact  that  the  mcmey 
was  not  paid  to  tlie  plaintiff,  but  was  paid  for  her  benefit  and  with 
her  consent  would  not  change  the  real  cliaracter  of  the  transjic- 
tion.[8] 

People  ex  rel.  Ainslee  v.  Howlett  (13  Han,  139),   distinguished.  [',*] 

{Decided  June  13,  1884.) 

Demurrer  by   X)]aintiff  to  certain   defenses  and  a 
counterclaim  alleged  in  the  answer. 

The  opinion  states  sufficient  facts... 


388  CIVIL   pRvOc:::)Un:':   R::rouTS. 

iinrues  v.  Gilinore. 

D.  E.  Stoddard^  for  plaintiff  and  demurrer. 

E.  D.  Mathews^  for  defendant,  opposed. 

Vann,  J. — By  her  complaint  the  plaintiff  seta  forth 
in  substance  that  on  the  lOth  of  November,  1876,  she 
owned  certain  real  estate  in  the  city  of  Utica,  worth 
$17,500,  that  it  was  incumbered  by  various  liens 
amounting  to  over  §13,000,  and  had  upon  it  an  uncom- 
pleted building  for  the  construction  of  which  she  was 
indebted  to  mechanics  and  meterial  men  in  diveis 
sums  which  she  was  not  able  to  pay.  That  she  ai>i)lied 
to  the  defendant  for  a  loan  to  complete  the  building 
and  pay  such  debts  ;  that  he  exacted  as  a  condition  of 
making  the  loan  that  she  should  convey  the  premises 
to  him  and  take  back  a  written  contracc  providing  that 
he  should  complete  the  building,  pay  the  just  claims 
and  liens  for  work  and  materials,  retaining  the  benelit 
of  any  abatement  that  he  could  secure,  and  that  she 
should  have  the  right  to  purchase  the  premises  at  any 
time  within  live  years  by  i)aying  all  his  exi)enditures 
for  the  benelit  of  the  proi)erty,  including  at  their  face 
value  such  claims  and  liens  as  he  should  purchase  or 
settle  at  a  discount,  and  including  as  a  i)ait  of  his  ad- 
vances a  doubtful  claim  of  $1,900,  that  he  had  against 
her  husband  ;  the  rents  received  to  be  applied  in  reduc- 
tion of  the  sum  to  be  paid  upon  sturh  purchase  by  her  ; 
that  this  arrangement  was  corru[it  and  tisnrions,  and 
the  same  was  raad<?  ami  carried  into  effect  by  the  con- 
veyance of  the  jMoperty,  thff  execution  of  the  contract, 
the  completion  of  the  building  and  the  ])a;/ment  of  the 
claims  and  liens,  many  of  ihem  at  a  large  discount; 
that  said  sum  of  $1,900  was  intended  as  a  bonus,  over 
and  above  legal  interest  upon  the  loan  of  the  money 
represented  by  the  ex[)endirures  made  by  the  defend- 
ant for  the  benelit  of  the  property,  and,  together  with 
the  abatements  from  said  claims  settled  at  less  than 


CIVIL    PROCEDURE    REPORTS.  28n 


Barnes  v.  Giimore. 


their  face,  r..  contrivance  and  cover  I"or  usmy.  No 
money  is  alleged  to  have  been  delivered  to  the  plaint- 
iff by  the  defendant,  but  it  is  chiimed  that  said  ad- 
vances were  in  effect  a  loan.  Said  written  contract  as 
set  forth  in  the  cf>mpl;iint  proviries  that  in  no  event 
shall  it  be  construed  as  a  niortga<;p. 

The  relief  demanded  is  that  the  conveyance  and 
contract  be  declared  usurious  and  void,  and  the  de- 
fendant required  to  account  for  the  rents  and  profits. 
There  is  uf)  demurrer  to  the  first  defense,  which  admits 
certain  a llep,at ions  of  the  complaint,  denies  the  same, 
especially  that  there  was  any  loan  or  agreement  there- 
for, and  alleges  that  the  transaction  was  a  purchase, 
with  a  refusal  to  resell  within  a  certain  period  and 
upon  certain  conditions,  that  the  plaintiff'  has  failed 
to  perform  ;  but  the  defendant  has  performed  in  part, 
and  is  ready  to  perform  in  full.  The  second  answer  is 
a  counterclaim  for  rent,  use  and  occu[)ation  of  part  of 
said  premises  by  the  plaintiff,  amounting  to  $2,412,  of 
which  onl}^  $675  has  been  paid,  and  judgment  is  de- 
manded by  the  defendant  in  his  favor  for  the  balance. 
The  third  answer  alleges  the  letting  of  pare  of  said 
premises  by  the  defendant  to  the  plaintiff  from  April 
1,  1878,  to  April  1,  1879  ;  that  on  the  22d  of  March, 
1879,  summary  proceedings  were  instituted  by  the  de- 
fendant before  a  justice  of  the  peace  to  recover  posses- 
sion from  the  plaintiff  for  non-payment  of  rent,  re- 
turnable on  the  25ch  when  the  plaintiff' appeared  there- 
in and  filed  an  affidavit  denying  the  facts  upon  which 
the  summons  was  issued,  and  "alleging  substantially 
all  the  equitable  claims  set  forth  in  the  complaint 
herein  ;"  that  a  trial  was  had,  a  witness  sworn  on 
either  side,  and  the  justice  decided  that  this  defendant 
as  landlord,  was  entitled  to  the  possession  of  the 
premises;  that  the  judgment  entered  accoidingly  re- 
mains in  full  force,  and  a  warrant  to  dispossess  was 
duly  issued  thereunder.  By  his  fourth  answer  the 
Vol.  VI.— 19 


290  CIVIL    PROCEDURE    REPORTS. 

Barnes  v.  Gilmore. 

defendant  alleges  that  on  Pehrnary  2,  1883,  the  plaint- 
iff and  her  husband  rented  of  the  defendant  by  a  lease 
in  writing  and  in  tlie  usual  form,  a  part  of  the  |)reni- 
ises  in  question,  and  entered  and  occupied  thereunder, 
and  that  upon  the  expiration  <^f  the  term  they  were 
duly  dispossessed  by  a  judgment  in  summary  [)ror:eed- 
ings  as  tenants  holding  over. 

The  third  and  fourth  answers  are  alleged  as  *'a  bar 
to  any  recovei-y  by  the  plaintiff  and  as  an  adjiulica- 
tion  in  favor  of  def^endant  against  said  plaintiff,  that 
defendant  is  the  owner  in  fee  of  said  piemises,  and 
that  said  plaintiff  has  no  cl:!im,  leg;il  or  equitable, 
against  the  same  orag::inst  this  di^HiidMur  aiising  out 
of  said  contract  or  of  the  fads  j:llegfd  in  said  com- 
plaint." 

To  the  second,  third  and  fourth  answers  the  plaint- 
iff demurs  on  the  grounds  that  they  are  insufficient 
in  law  upon  their  face  ''as  a  C(^unterchiim,"  and 
that  the  facts  stated  are  not  "sufficient  to  sustain  and 
to  constitute  a  valid  defense  and  counterclaim." 
She  further  demurs  to  the  second  answer  on  the 
grounds  that  the  counterclaim  does  not  arise  out  of  the 
transaction  set  forth  in  the  complaint  and  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action. 

I.  The  counterclaim  peimitted  by  section  500 of  the 
Code  of  Civil  Procedure  must  tend  in  some  way  to 
diminish  or  defeat  the  jilaintiff's  recovery,  and  ex- 
[']  cept  in  an  action  on  contract  must  be  a  cause  of 
action  arising  out  of  the  contract  or  transactions 
Het  forth  in  tlie  complaint  as  the  foundation  of  the 
I)laintiff's  claim,  or  connected  with  the  subject  of  the 
action.     Code  Civ.  Pro.  §  r)01. 

The  counterclaim  pleaded  in  the  second  defense 
conforms  to  the  requirements  of  the  statute.  The 
plaintiff,  as  a  part  of  the  relief  demanded,  asks  for  an 
accounting  for  the  rents  and  profits  of  certain  premises 
during  a  certain   period.      The   counterclaim   is   for 


CrViL    PROCEDURE    REPORTS.  291 


Biiriies  V.  Gihnore. 


certain  rents  due  from  plaintiff  to  del'eiidnnt  for  a  part 
of  the  same  premises  during  a  part  of  the  same  yieriod. 
It  therefore  tends  to  diminish  the  plaintiff's  re- 
{']  covery.  It  is  connected  with  -the  snbject  of  the 
action,  whrch  is  the  real  estate  in  qnestion,  and 
arises  out  of  the  transaction  set  forth  as  the  founda- 
rion  of  tlie  plaintiff's  claim,  to  wit :  the  execution  of 
said  deed  and  contract.  It  contain-s  JlU  the  elements 
of  a  good  cause  of  action  for  rent,  or  use  and  occupa- 
tion, viz.:  ownership  by  the  landlord,  actnal  occupa- 
tion by  the  tenant,  and  an  agreement  by  her  to  pay  at 
a  specified  rate  for  a  specified  time  in  advance. 

The  position  of  the  learned  counsel  for  tlie  plaintiff, 
that  this  action  is  in  tort  for  wrongfully  depriving  her 
of  her  lands,  cannot  be  sustained.  This  is  not  an 
-action  of  ejectment  or  at  law  to  recover  the  possession 
of  lands  wrongfnlly  withheld,  but  is  a  suit  in  equity 
to  set  aside  a  certain  deed  upon  the  ground  that  it  is 
void  for  usury.  No  fraud  is  alleged.  The  deed  was 
voluntarily  given.  If  it  is  void  for  usury  it  is  because 
a  contract  to  which  the  plaintiff  was  a  willing  party,  is 
In  violation  of  a  statute.  If  the  statute  was  violated 
'the  plaintiff  intentionally  aided  in  the  act. 

II.  The  third  and  fourth  answers  and  the  grounds 
of  demurrer  thereto  are  sufficiently  alike  in  principle 
'to, be  considered  together.  In  each  of  these  answers 
an  adjudication  by  a  tribunal  of  competent  Jurisdic- 
tion in  a  controversy  between  the  parties  to  this 
xiction,  that  the  conventional  relation  of  landlord  and 
tenant  existed  between  them  is  pleaded  as  a  bar.  The 
plaintiff  concedes  that  as  long  as  that  relation  thus 
adjudicated  upon  continued  to  exist,  she  could  not 
dispute  the  title  of  the  defendant,  but  contends  that 
when  that  relation  ceased  and  she  was  no  longer  in 
possession,  she  could  set  up  title  in  herself. 

In  one  of  the  proceedings  to  dispossess  her,  she  is 
alleged  to  have  set  up  as  a  defense  the  facts  constitut- 


292  CIVIL    PROCEDURE    REPORTS. 

. ri 

Harries  v.  Gil  more. 

ing  her  cause  of  nction  he-rein,  and  if  this  was  regular 
she  had  a  right  to  plead  the  same  defense  to  the  oiher 
proceeding.  If,  tlierefore,  the  justice  of  the  peace  had 
jurisdiction  to  adjudicate  u[)on  such  a  d^-fellse,  tlie 
])IaintiIT  has  had  iier  day  in  court  and  cannot  be 
heaid  again  upon  that  subject. 

In  The  People  ecc  rel.  Ainslee  v.  Howlett,  18  Buv., 

138,  affirmed  76  N.  7.  574,  it  was  held  that  al- 
[*]     though  the  statnte  reguhiling  summary  ])ro('eed- 

ings  permitted  only  a  denial  by  the  tenant  of  the 
allegations  of  the  landlord,  still  an  allegation  by  the 
tenant  showing  that  the  lease  was  void  for  usury  was 
equivalent  to  a  denial  that  there  was  a  lease.  It  is 
goingbut  a  step  further  to  hold  in  this  case  that  if  I  he 
deed  was  void  for  usury,  the  lease  predicated  upon  the 
deed  was  voidable  by  the  tenant,  and  that  hence  these 

facts  when  alleged  amounted  to  a  denial  of  the 
[*]     tenancy.     The  main  dilference   between  the   case 

cited  and  the  case  at  bar,  is  that  in  the  latter  the 
lease  was  not  a  part  of  the  original  transaction  but 
was  executed  subsequently.  It  was  held  in  effect  in 
The  People  ex  rel.  Ainslee  v.  Ilowlett  {supra)  that  the 
issue  of  usury  could  be  tried  in  a  summary  proceeding. 
Therefore,  if  the  defendant's  right  to  dispossess  the 
plaintiff  w^ould  have  been  defeated  by  the  deternji na- 
tion of  the  issue  of  usury  against  him,  the  determiiui- 
tion  of  that  issue  in  his  favor  must  be  a  bar  to  this 
action.  The  allegation  of  u>ury  atnounted  to  a  denial 
and  this  seems  to  havp  been  peimiited  by  the  cdurt  of 
a[)peals,  notwithstanding  the  usual  I'lile  lJi:it  a  tenant 
cannot  disput*!  his  landioid's  liih'.  This  wjis  upon 
the  ground,  however,  that  the  person  M))pearing  to  be 
a  tenant,  in  reality  was  not  a  tenant,  Ix'canse  the  in- 
strUMinnt  apiKirnntly  creating  the  tenancy  wiis  void  as 
part  of  an  usurious  agreement.  The  lease  in  this  case 
was  not  part  of  an  usurious  agreement  but  was  a  sub- 
sequent and  indei)endent  contract.    The  original  trans- 


CIVIL     PROCEDURE    REPORTS.  293 

Barnes  v.  Gilmore. 

action  took  place  Nov.  10,  1876,  whilst  the  first  lease 
was  in  March,  1877.     I  think   that  when  the  plaintiff 

made  a  new  contract  accepting  the  defendant  as 
[']     her  landlord,   she   was  estojiju-d  so    long  as  she 

remained  in  undisturbed  possession  under  that 
contract  from  denying  his  tiile. 

My  chief  reason  for  this  conclusion  which  I  have 
reached  after  some  hesitation,  is  that  the  lease  was 
not  a  part  of  the  original  transaction  and  hence  was 
not  directly  affected  by  the  alleged  usury.  The  lease 
was  as  valid  as  it  would  have  been  if  the  landlord  had 
never  had  any  title  by  an  usurious  contract  or  by  any 
other  contract.  It  had  the  same  effect  as  it  would 
liave  iiad  if  the  landlord's  tirle  had  been  void  for  any 
reason  other  than  for  usury.  The  fact  that  a  lessor 
never  owned  the  land  and  never  had  any  interest  in 
it  or  right  to  lease  it  does  not  permit  the  tenant,  while 
still  in  possession,  to  deny  his  landlord's  title. 
Wood^s  Landlord  and  Tenaid^^l2  ;  McAdavi  s  Land- 
lord, and  Tenant,  422.  It  is  one  thing  to  allege  that 
the  lease  itself  is  a  void  contract  and  another  to  allege 
that  the  lease  is  invalid  because  a  different  and  prior 
contract  is  void.  In  the  latter  case  there  is  a  new  and 
independent  recognition  of  the  landlord's  title.  The 
tenant  could  not  deny  that  there  was  any  lease,  as  it 
is  intimated  in  The  People  v.  Howlett,  that,  in  the  case 
of   a  lease   void  for  usniy,  can   be   done.     He   would 

have  to  admit  the  existence  of  the  lease  that  he 
['J     entered  and.  was  holding  under  it  and  then  deny 

in  etiect  that  the  landlord  had  any  title,  or  in 
other  woids  deny  what  in  the  lease  he  had  admitted. 
This,  I  think,  cannot  be  done  in  any  case  except  when 
the  lease  containing  such  admissions  is  void  and  inef- 
fectual for  any  purpose. 

III.  The  defendant  insists  that  the  complaint  does 
not  set  forth  a  cause  of  action  and  that  hence  a  de- 
murrer to  the  answer  will  not  lie.     I  do  not  think  that 


294  CIVIL    PROCEDURE    REPORTS.* 

Adams  v.  City  of  Utica. 

the  deed  and  contract  are  usurious  upon  their  face, - 
but  it  is  alleged  that  an  usurious  agreement  was  mad&^ 
and  that  the  deed  and  contract  were  nnerely  the  form 
adopted  as  a  contrivance  to  conceal   the   usurj'.     If- 

that  was  the  case,  the  fact  that  the  money  was  not 
17]    paid  to  the  plaintiff,  but  was  paid  for  her  benefit' 

and  with  her  consent  wonld  not  change  the  real 
character  of  the  transaction.  If  it  was  intended  to  be 
what  upon  the  lace  of  the  papers  it  api>eared  to  be,  a- 
sale  of  real  estate  with  an  agreement  to  resell  on  cer--; 
tain  terms  it  could  not  be  affected  by  usury.  But  if  it 
was  intended  to  be  what  the  complaint  a'leges  it  was,- 

a  loan  carefully  concealed  under  the  form  of  an* 
[']    innocent  business  contract,  then  it  was  usurious^ 

and  void. 
The  demurrer  is  overruled  as  to  the  secand  count  of 
the  answer,  but  is  sustained  ns  to  the  third  and  fourths- 
counts. 


ADAMS.  t>.  THE  CITY  OF  UTICA. 
Supreme  Court,  Onondaga  County,  Special  Tkrm^. 

OCTOBEll,  1884. 
§  1013. 

"Referetiee. —  "Khen  crrmjmhory,  trill  not  le  ordet'eJ  inaction  hy  attorn  e'^ 

forprofexxionnl  neveice/t.  — Proof  of  vahie  <f  strviceii  in 

such  an  uetion  where  sum  in  gross  claimed. 

Where  in  an  aetii>i>  I>y  an  nttorney  tn  reeovcr  for  profcssjona)  sorvires 
reii<lcre<l  in  tlirce  matters,  tlie  defendant  admitted  the  peiloimanee 
of  tlie  services  and  only  contested  their  value, — IJtH,  llial  nolwitli- 
utanding  a  grogs  sum  was  claimed  in  tlie  «;on»|)lainf,  the  plaintitl 
might  prove  the  value  in  gross,  or  at  his  option  prove  the  value  of 
the  services  in  each  step  of  the  action  in  which   they  weie  reu- 


CIVIL     PRdCEDURE     REPORTS.  295 

Adiims  V.  City  oi  Utica. 

deied;[*]   tliat    tlic  action   w<m!il    not   require    tlic  examinalioii   of 
a  Ioii<>;  accouut, ['J  ami    was  not  reluiablc ;[^J   but   the  parties  were 
entitled  to  a  liiiil  by  jury  [^J 
(Decided  October  2j»  188J  ) 

Motion  by  i)laintiff  to  refer  the  issues  made  by  the 
l^leadings. 

The  facts  are  stated  in  the  opinion. 

Charles  D.  Adams,  plaintiff  in  person,  for  the  mo- 
tion. 

M  D.  MalJieios,  for  defendant,  opposed. 

KKXisrEDY,  J. — The  coniphiint  contains  two  counts. 
The  first  for  services  lendered  by  the  plaintilf  for  tlie 
defendant  upon  its  letainer  as  an  attorney  and  coun- 
sellor of  this  court  in  tlie  examination  by  him  of  qnes- 
tions  relating  to  the  Utica  &  Mohawk  liaiiioad  Com- 
I)any,  for  which  the  plaintiff  seeks  to  recover  $1(H). 
TImj  second  count  is  for  services  of  a  like  char;icter 
rendered  by  the  plaintiff  in  and  about  a  contract  be- 
tween said  defendant  and  the  Utica  Waterwork  Com- 
l^uny,  and  the  rights  and  liabilities  of  such  cities 
thereunder,  and  also  for  services  rendered  by  the 
j)laint;ff  in  an  action  subsequently  brought  on  said 
conti'act  by  said  AVnter  Com})any,  for  which  tht-  i)iaint- 
iff  claims  to  recover  lifteen  hundred  dollars.  The  an- 
swer of  the  dei'endiint,  together  with  astipulation  now 
tendered  the  phiintiff,  admits  the  services  claimed  to 
have  been  performed  by  him,  and  only  contests  the 
value  of  the  same.  A  bill  of  particulars  furnished  by 
the  plaintiff  contains  several  items  for  the  services  ren- 
dered, separately  stated,  but  all  growing  out  of  the 
above  mentioned  employment.  The  motion  presents 
two  questions. 

First.  Is  the  case  one  in  which  a  compulsory  refer- 
ence can  be  ordered  by  the  court  ? 


298  CIVIL    PROCEDURE     RKPORTS. 

Adiims  V.  City  of  Utica. 

Second,  If  so,  should  the  court  in  the  exercise  of  a 
sound  discretion  order  such  reference  ? 

TJie  first  question  presented  involves  a  substnntial 
right,  and  is  therefore  the  subject  of  an  appeal.  (Mar- 
tin V.  Windsor  Hotel.  Co.,  10  JV.  Y.  101.)  The  claim 
of  the  plaintiff  is  based  upon  two  retainers  or  employ- 
n»ent3  by  the  defendant,  and  a  gross  sum  in  each  case 
is  sought  to  be  recovered.  Exce])t  when  the  tiial  will 
require  the  examination  of  a  long  account,  neither 
party  can  be  deprived  of  his  right  to  a  trial  of  the 
issues  by  a  jury.  In  my  judgment,  under  the  i)Iead- 
ings  and  stipulation  the  trial  of  the  issues  herein 
[']  will  not  require  the  examination  of  a  long  ac- 
count within  the  legal  definition  of  the  proposi- 
tion. 

A  gross  sum  is  claimed  in  the  complaint  for  the  ser- 
vices rendered  and  upon  the  trial  the  plaintiff  miiy 
[']     prove  the  value  in  gross,  or  at  his  option  ])rove 
'the  value  of  ihe  services  in  each  step  in  the  action 
in    which    they    were   rendered.     (Fell.   v.  Tiffairy,  11 
JJun,  G3  ;  Bathgate  d.  Haskins,  50  N.  Y.  533  ;  Thomas 
V.  Reab,  6  Wend.  503;   Dickinson  v.  Mitchell,  19  Abb. 
Pr.  286.)    The  most  the  plaintiff  can  claim  is  that  his 
demand  is  composed  of  two  items  requiring  sim[)ly  the 
l)roof  of   their  value.     It  is  held  in  Waring  v.  Cham- 
berlain, (14  N.  Y.   Weekly  Dig.  564).  that  such  an  ac- 
tion is  not  referable,  bur  that  the  parties  are  en- 
[»]     titled    to   a   trial    by   jury.       See   also   Tracy   v. 
Stearns  (12  Id.  ri33)  ;    and  Merritt  v.  Vegellus  (28 
Jfun,  420).     I  have  examined  the  cases  leferred  toby 
the  learned  plaintiff,  and  find  in  them  nothing  which 
conflicts  in  any  manner  with   the  doctrine  enunciated 
in  those  above  cited.      The  case  of   linger  v.  Leiden 
{'27  //un,  405),  afterwards  affirmed  in   tlie  court  of  ap- 
l)eals  will  not  justify  a  reference  in  this  case. 

The  moti(m    is  therefore  denied  with    ten   dollars 
costs  to  ihe  defendant. 


CIVIL    PROCEDURE     REPORTS.  297 

People  ex  rel.  Herkimer  v.  Assessors  of  Town  of  Ileikiiiier, 


THE  PEOPLE  ex  rel.  THE  HERKExMER  «&  MO- 
HAWK RAILROAD  COMPANY  /;.  THE  AS- 
SESSORS  OF  THE  'lOWN  OF  HERKIMER. 

SuPiiEMK  Court,    Onkida  Couxty,    Special  Term, 

OcT013EK,  18iS4. 

.  §§723,  1991,  1992,  2120, 

Certiorari. — Assessors  of  toicn  to  he  dexignated  in,  hy  individual  names. 
— Effect  of  omission  of  seal. 

The  assessors  of  a  town  are  not  a  board  or  body  against  wliich  an 
action  will  lie  witlioul  mentioning  in  the  process  the  names  of  the 
persons  who  are  such  assessors;  they  have,  as  a  body,  no  associate 
or  ofBcial  name,  ami  couseqiieruly  a  writ  of  certiorari  directed  to 
"tlie  assessors  of  the  town,"  etc.,  without  mentioning  the  names 
of  the  individual  assessors  is  defective,  and  must  be  amended  or 
dismissed. 

A  writ  of  ccrtiorori  must  be  issued  under  the  seal  of  the  court,  but 
the  omission  of  tlie  seal  does  not  make  the  writ  void;  the  defect 
may  he  cured  by  amendment. 

(Decided  October  24,  1884.) 

Motion  to  qnnsh  a  writ  of  certiorari,  under  chap 
ter269of  tlie  Laws  of  1880,  to  revie\\-  an  assessment 
made  upon  property  of  the  relator  by  the  assessors  of 
the  town  of  Herkimer. 

Further  facts  appear  in  the  opinion. 

A.  B.  Steele.,  for  the  defendant  and  motion. 

S.  Earl.,  for  the  relator,  opposed. 

Vanis,  J. — A  writ  of  certiorari  to  review  the  deter- 
mination of  an  inferior  tribunal  is  a  state  writ,  which, 
by  the  express  provisions  of  the  statute  is  required  to 
be  issued  under  the  seal  of   the  court  be  Tore  which  it 


2«8  CIVIL    PROCEDURE    REPORTS. 

1 

People  ex  rel.  Herkimer  v.  Assessors  of  Town  of  Herkimer. 

is  returnable.  {Cocleof  Cloll  Procedure,  §§  1091,  1992.) 
An  assessment  of  property  by  the  assessors  for  the 
purpose  of  taxation,  is  a  determinalion  by  an  inferior 
tribunal  within  the  meaning  of  section  2140,  of  tlie 
Code  of  Civil  Procedure.  Tiie  vvi-tt  in  quest  iron  should 
therefore  have  been  issued  under  the  seal  of  this 
court.  It  is  not,  however,  void  l)y  reason  of  this  de- 
fect, which  may  be  cured  by  amendment.  {Code  §§  241, 
723.)  The  writ  is  also  defective  in  that  it  is  directed  to 
"The  assessors  of  the  town  of  Herkimer,"  instead  of 
to  the  individuals  who  are  the  assessors  of  that  town, 
naming  them  and  adding  the  name  of  their  ofTice. 
(§  2129  Code  Civ.  Pro.)  Tlie  mode  of  addressing  these 
writs  is  now  fixed  by  law,  and  the  ])ractice  whi(rh  pre- 
vailed to  some  extenf  before  the  adoption  of  the  pres- 
ent Code  can  no  longer  be  followed. 

Section  2,129  of  the  Code  requires  the  writ  to  be 
directed  to  the  body  or  officer  whose  determination  is 
to  be  reviewed.  If  an  action  would  lie  against  the 
board  or  body  in  its  associate  or  official  name,  this 
section  further  requires  that  the  writ  shoidd  be  direct- 
ed to  the  board  or  body  by  that  name,  otherwise  to 
the  members  theieof  by  tlieir  names.  The  assessors 
of  a  town  are  not  a  board  or  body  within  the  meaning 
of  that  section.  An  action  would  not  lie  against  ''  The 
assessors  of  the  town  of  Herkimer,"  without  mention- 
ing in  the  process  the  names  of  the  persotis  who  are 
such  assessors  any  more  than  it  would  lie  agninst  the 
commissioneis  of  highways  of  that  town,  without  as- 
serting their  names  in  the  summons.  Tht^  assessors  of 
a  town  have,  as  a  body,  no  associate  or  official  name. 
None  such  is  mentioned  in  the  statutes  providing  for 
their  election  and  prescribing  their  duties  and  poweis. 
(1  Ji.  S.  824,  985.) 

Boards  of  Supervisors  (1  P.  S.  8611),  of  Commis- 
sioners oT  Excise  (2  P.  S.  932) ;  of  Equalization  (1  P. 
S.  946),  and  other  boards  are  bodies  having  an  official 


CUVIL    PROCEDURE    REPORTS.  299 

r-— ■ 

People  ex  rel.  Hoyle  v.  Osborne. 

name  independent  of  the  official  name  of  the  officers 
composing  them.  An  action  might  be  brought  against 
such  a  board  by  its  official  or  associate  name,  but  not 
against  assessors,  because  they  have  no  official  name 
when  acting  together  that  they  do  not  have  when  act- 
ing separately.  As  an  affidavit  has  been  furnished 
stating  the  names  of  the  assessors  of  the  town  of  Her- 
kimer, I  think  the  writ  should  be  amended  in  this 
respect  also.  The  other  grounds  upon  which  the  mo- 
tion to  quash  was  based  are  not  sustained.  An  order 
may  be  entered  granting  the 'motion  to  dismiss  the- 
writ  with  costs  unless  the  relators,  within  ten  days- 
after  notice  of  this  decision  pay  $10  costs  of  motion  ta 
thecounselfor  the  respondents,  and  upon  such  pay- 
ment being  made,  an  order  may  be  entered  amending 
the  writ  in  the  respects  above  VLiQntiowQd  nunc  pro  tunc. , 


THE  PEOPLE  ex  rel.  HOYLE  v.  OSBORNE. 

Supreme  Court,  Onondaga,  Special  Term,  Janu- 
ary, 1884. 

§§  2015  et  seq.,  2019. 

Habeas  corpus. — To  secure  custody  of  child. — By  whom  issued. 

A  petition  by  a  wife  living  separate  from  her  husband,  for  a  habeas 
corpus  for  the  purpose  of  removing  her  minor  child  from  the  cus- 
tody to  which  it  liad  been  committed  by  its  fatiier  and  to  iiavc  it 
committed  to  her,  siiould  be  presented  to  tlie  court  and  the  writ 
siiould  be  issued  by  the  court;  a  judge  at  chambers  cannot  issue  it. 

Tlie  failure  to  state  in  a  petition  for  a  habeas  corpus  that  the  person 
in  wliose  behalf  the  writ  is  applied  for,  is  not  detained  by  virtue 
of  a  fioMl  order  of  a  competent  tribunal  made  in  a  special  proceed- 
ing or  of  an  execution  or  precept  issued  upon  such  order,  is  a  fatal 
defect. 

{Decided  January  5,  1884.) 


300  CIVIL    TROCEDURE    REPORTS. 

People;  ez  rel.  Hoyle  v.  Osborne. 

Motion  by  defendant  to  dismiss  an  habeas  corpus 
issued  lierein. 

The  opinion  states  tiie  facts. 

Thomas  Hogan,  for  the  defendant  and  naotion. 

C.  S.  Kent,  for  the  relator,  opposed. 

Churchill,  J. — The  writ  in  this  case  issues  upon 
the  petition  of  tiie  rehxtor,  the  mother  of  John  Hoyle, 
an  infant  six  years  of  age,  who  desires  to  tnke  the 
child  from  the  custody  to  which  it  has  been  committed 
by  the  father,  and  to  have  ir.  committed  to  her  own 
custody.  The  writ  was  issued  by  a  justice  of  tlie  court 
at  chambers,  but  was  made  returnable  at  a  special 
term  of  the  court. 

The  revised  statutes  gave  the  supreme  court  the 
right  to  issue  the  writ  at  the  instance  of  a  wife  living 
separate  from  the  husband,  and  thereupon  to  deter- 
mine as  to  the  custody  of  an  infant  child.  (2  JL  S. 
148,  §  12.) 

The  chancellor  also,  inde[)endent  of  the  statute  and 
as  a  part  of  the  power  of  the  court  of  chancery  derived 
from  the  common  law,  might  by  habeas  corjyus  cause 
an  infant  child  to  be  brought  before  him,  and  might 
thereupon  commit  the  charge  and  custody  of  the 
child  to  the  mother,  against  the  wishes  of  the  I'athei-, 
if  the  interest  of  tiie  child  so  required.  (People  /\ 
Mercein,  SPage,  47  ;  Mercein  n.  Peoi)le,  25  Wend.  04.)  ', 

This  power  the  chancellor  could  exercise  at  cham- < 
bers  as  well  as  at  term,  and  for  its  exercise  the  court 
of  chancery  was  always  open,  and  to  this  power  by 
virtue  of  section  16  of  the  judiciary  acts  of  1847  {Laws 
o/"  1847,  chap.  280,  §  16),  the  justices  of  the  supreme 
court  succeeded.  (People  v.  Wilcox,  22  Barh.  178, 
194,  195  ;  Wilcox  v.  Wilcox,  14  N.  Y.  575.) 


CIVIL    PROCEDURE    REPORTS.  301 

People  ex  rel.  Hoyle  v.  Osborne. 

The  cases  established  that  under  the  judiciary  act 
of  1847  the  justice  of  the  supreme  court  had  power  to 
entertain  proceedings  of  this  kind  at  chambers  as  well 
as  at  term,  and  that  in  entertaining  them  they  acted 
as  a  court.  Chapter  417  of  the  LaiDS  of  1877  repealed 
subdivision  21,  section  16  of  the  judiciary  act  of  1847, 
and  since  that  repeal  justices  of  the  sui)reme  court, 
when  not  sitting  as  a  court,  have  not  that  power. 

The  objection,  therefore,  that  the  petition  should 
have  been  presented  to  the  court,  and  the  writ  issued 
by  the  court  seems  to  be  well  taken.  (See  24  Barb. 
621  f  1  Duei\  709  ;t  59  Hoio.  174.+) 

The  petition  is  also  defective  in  not  stating,  in  sub- 
stance or  otherwise,  that  the  person  in  whose  behnlf 
the  writ  is  applied  for,  is  not  detained  by  virtue  of  a 
final  order  of  a  competent  tribunnl  made  in  a  special 
proceeding,  or  of  an  executiim  or  prece))t  issued  upon 
such  order. 

This  is  particularly  required  by  the  Code,  and  the 
defect  is  fatal.  {Code.,  %  2019  ;  People  c.  Cowls,  59  Hoio. 
Pr.  287.) 

This  case  does  not  come  under  section  2025  of  the 
code  since  that  applies  only  to  the  caise  of  an  illegal 
imprisonment  or  restraint,  while  the  detention  of  the 
lad,  John  Hoyle,  as  shown  by  the  pMpers  in  this  ease, 
is  a  legal  one,  although  one  from  which  [\\e  court,  if 
his  interest  should  be  shown  to  require  it,  mny  relieve 
him. 

The  proceedings  shotild  be  dismissed,  but  without 
prejudice  to  an\^  future  ])i-('ceedings  that  may  be 
taken  in  the  interest  of  ihe  infant. 

*  People  r.  lliimphrej's. 

t  People  V.  Cooper. 

\  People  ex  rd.  Ward  v.  'Ward. 


•302  €IV1L    PROCEDURE    REPORTS. 


In  re  N.  Y.,  &c..  K.  li.  Co. 


In    RE    APPLICATION    OF    THE    NEW    YORK,    WESt 

SHORE  AND  BUFFALO  RAILROAD  COM- 
PANY TO  ACQUIRE  TITLE  TO  CKKTAIlSr 
REAL  ESTATE  OF    WILLIAM  A. 

&  SARAH  J.   JUDSON. 

Supreme  Court,  Fourth  Department,  General 
Term,  Junp:,  1884. 

.§  997. 

-Appeal. — Report  of  commissioriers  to  proceeding  to-acquire  land  for  rail 
road,  how  corrected. 

"Where,  on  an  appeal  from  the  report  of  commissioners  appointt'd  in 
a  proceeding  by  a  railway  company  to  acquire  title  to  nal  propirty 
the  stenographer's  minutes  of  the  testiinony  taken  before  the  com- 
missioners wiiich  was  annexed  to  and  formed  a  part  of  tlie  commis- 
sioner's report  were  asserted  to  be  incorrect, — Held,  that  the  report 
should  be  sent  back  to  the  commissioners  to  settle  the  minutes 
upon  a  hearing  on  notice;  that  the  court  should  not,  in  the  ab- 
sence of  bad  faith  or  culpable  irregularity,  undertake  to  say  for  the 
commissioners  what  the  record  should  be. 

Appeal  by  the  landowners  from  Mie  order  of  the 
■Oswego  special  term  denying  a  motion  to  correct  the 
printed  case. 

Upon  the  hearing  before  the  commissioners,  a  sten- 
t)gr;ipher  was  employed  to  take  minutes  and  his 
report  of  the  testimony  and  proceedings  was  attacli+^d 
to  the  rei)ort  of  the  commissioners  as  being  the  njin- 
ntes  of  the  testimony  taken  by  them.  The  re))()rt  of 
tlie  commissioners  having  been  confirmed  at  special 
term,  the  railway  company  ajjpealed  from  the  order 
of  confirmation  to  the  general  term.  The  printed 
papers  on  such  appeal  having  been  served,  the  re- 
spondents therein,  the  landowners,  jnade  a  motion  at 


CIVIL    PROCEDURE    REPORTS.  303 

In  re  N.  Y.,  Ac.  R.  R.  Co. 

special  terra  to  have  them  corrected,  claiming  tiiat 
they  were  defective  in  that  they  did  not  contain  admis- 
sion of  the  attorney  of  the  railway  company  as  to  the 
title  of  the  landowners  and  objections  based  on  such 
admission.  On  the  part  of  the  company  it  was  denied 
that  there  was  any  such  admissions  or  objection.  It 
was  held  at  special  term  that  upon  the  wiiole  case  the 
iandowne.rs  failed  to  show  themselves  entitled  to  the 
amendments  asked  for. 

E.  J.  Richardson  and  A.  L.  Johnson,  for  land- 
owners, appellants. 

P.  B.  McLennoii,   for  the  railway   company,  re^ 
spondent. 

Merwin",  J.— By  the  statute  the  commissioners 
were  required  to  reduce  the  testimony  taken  by  them, 
if  any,  to  Avriting,  and  to  make  a  report  of  their  pro- 
-ceedings  with  the  minutes  of  the  testimony  taken  by 
them,  if  any.     2  R.  S.  (7th  ed.)  2551,  §  16. 

The  minutes  are,  therefore,  a  part  of  the  report; 
and  as  such,  are  filed  and  become  a  part  of  the  case  on 
appeal.  If  either  side  claims  that  the  minutes  as 
returned  are  incorrect  the  query  with  us  is  whether 
the  commissioners  are  not  the  ones  to  settle  that  mat- 
ter in  analogy  to  the  settlement  of  a  case  on  appeal 
from  a  trial  court.  If  this  court,  either  at  special  or 
general  term,  should  undertake  on  contiicting  affi- 
davits to  determine  what  evidence  was  taken  or  what 
admissions  or  objections  were  made  before  the  com- 
missioners, would  it  not  be  recognizing  a  rule  of 
practice  that  in  its  operation  would  naturally  l(^ad  to 
undesirable  results?  Would  not  this  in  effect  allow 
a  report  to  be  contradicted  and  impeached  by  afiida- 
vits  ?  (See  Rochester  and  Genesee  Valley  R.  R.  Co.  v. 
Beckwith,  10  How.  Pr.  168  ;  N.  Y.  and  Erie  R.  R. 
Co.  ».  Corey,  5  Id.  177.)     The  commissioners  act  in  a 


304  CIVIL     PROCEDURE     REPORTS. 

In  re  N.  Y.,  &c.  11.  li.  Co. 

judicial  characfei-  with  limited  i)o\vers,  and  it  is  their 
record  as  a  judicial  body  that  come.s  up  on  appeal. 
Should  the  appellate  court  in  the  absence  of  bad  lairii 
or  culpable  irregularity  undertake  to  say  lor  them 
what  the  record  should  be?     We  think  not. 

It  seems  to  be  conceded  on  both  sides  that  the 
amendments  claimed  are  of  a  material  character. 
Upon  the  papers  before  us  it  looks  somewhat  doubt- 
ful about  an  admission  having  been  as  foimally  uiade 
as  is  claimed  by  the  landowners.  Still,  at  lliat  sta;:e 
of  the  case  it  may  be  that  the  attorney  for  the  com- 
pany supposed  that  the  fee  of  the  title  was  in  Mr. 
Judson  but  incumbered  by  a  street,  while  at  a  subsM. 
quent  period  in  the  case  upon  information  it  w;:s 
claimed  that  the  fee  in  that  part  covered  by  the  street 
was  not  out  of  Mr.  Judson.  An  argnmerit  in  this 
line  might  harmonize  to  some  extent  the  coritiicting 
view  of  the  parties.  No  bad  faith  is  charged  upon 
the  commissioners,  nor  any  irregularity,  'iliey  do 
not  in  fact  pass  upon  the  correctness  of  the  sten- 
ographer's minutes  prior  to  their  being  attached  to  and 
filed  with  their  report.  It  was  assumed  that  they 
were  correct.  We  think  we  should  assume  that  in 
case  the  commissioners  are  called  u]»()n  to  settle  in 
fact  the  minutes,  it  will  be  done  with  proper  regard 
for  what  in  fa(;t  occurred. 

In  our  opinion  the  report  shouUI  be  sent  back  to 
the  commissioners  to  settle  the  minutes  ui)()n  a  h.earing 
on  notice.  We  must  thereCore  reverse  the  order  and' 
allow  the  appellants  lo  apply  to  the  commissioneis  to 
correct  the  minutes  of  the  testimony  and  proceedings 
had  before  ihem  on  eight  days'  noiice.  If  the  com- 
missioners, or  a  myjoiity  of  them,  shall  after  hear- 
ing the  parties  conclude  that  the  minutes  filed  are 
incorrect  they  may  correct  them  in  such  manner  as 
shall  nuike  them' con  form  to  the  evidence  and  admis- 
sions or  objections  in   fact   taken  or  made  and    the 


CIVIL    PROCEDURE    REPORTS.  305 

Cole  c.  McQarvey. 

corrected  minutes  may  be  filed  with  the  clerk,  nunc 
pro  tunc.  As  the  question  involved  is  new,  the  re- 
versal will  be  without  costs  to  either  partly. 

Hardin,  P.  J.,  concurred. 


COLE,  AN  INFANT,  BY  COLE,  iTis  QV A  PwDiAN  ad  lltem^ 
V.  McGARVEY  et  al. 

Supreme  Court,   Oneida  County,  Special  Term, 
June,   1883. 

§§  421,  472. 

Discontinuing  art  ion.  —  When   order,    ineffectual  after  special   appear- 
ance   of  defendant. — Effect  of  failure  to  achiowl- 
edge  consent  to  be  guardian  ad  litem. 

Where,  after  the  defendant  in  an  action  appeared  specially  therein, 
for  the  purpose  of  moving  fo  set  aside  an  order  appointing'  a  guard- 
ian ad  litem  of  the  plaintiff,  an  infant,  but  before  ho  had  appcand 
generally,  the  plainlilf  procured  an  order  ex  parte  discontinuing 
the  action, — Held.,  that  naless  the  plaintiff  shows  that  the  motion 
was  without  foundation  lie  should  pay  the  costs  of  the  motion  be- 
fore getting  the  benefit  of  the  discontinuance. 

An  order  appointing  a  guardian  a<H/^(?/ft  is  irivgular  when  the  con- 
sent of  the  person  named  as  guardian  to  act  assucii  is  not  acknowl- 
edged, and  should  be  set  aside,  and  an  action  brought  by  the 
guardian  under  such  appointment,  dismissed. 

{Decided  June  16,  1883.) 

Motion  by  defendant  to  set  aside  the  order  appoint- 
ing fhe  guardian  ad  litem,  and  to  dismiss  the  action 
on  the  ground  that  tlie  petition  for  the  appointment; 
of  the  gunrdian  does  not  show  that  the  proposed  guar- 
dian is  a  competent  and  responsible  person,  and  that 
the  consent  of  the  proposed  guardian  is  not  acknowl- 
edged. 

The  opinion  states  sufficient  facts. 
Vol.  VI,— ao 


306  CIVIL    PROCEDURE     REPORTS. 

Cole  V.  McGarvey. 

S.  J.  Burrows^  for  defendant  and  motion. 
J.  Frank  Rogers,  for  plaintiff,  opposed. 

Merwin,  J. — The  appearance  of  the  defendant  in 
tliis  action  is  specilically  for  the  purposes  of  this  mo- 
tion only. 

After  the  service  on  plaintiff's  attorney  of  the  mo- 
tion papers,  he,  upon  a  stipulation  signed  by  him  and 
his  affidavit  showing  the  state  of  the  case,  entered  an 
order  without  notice  that  the  action  be  discontinued 
without  costs,  and  served  a  c(jpy  of  the  older  on  eacli 
of  the  defendants.  It  is  claimed  on  the  part  of  plaint- 
iff that  he  had  a  right  to  discontinue  without  costs,  a 
general  appearance  not  having  been  put  in,  and  that 
such  discontinuance  is  a  defense  to  this  motion. 

It  has  been  held  that  a  plaintiff  has  a  right  to  an 
order  of  discontinuance  without  costs  before  appear- 
ance, although  after  a  retainer  in  fact  by  a  defendant 
of  an  attorney.  (14  Hoio.  95  ;  7  11  III.  520  ;  10  N.  Y. 
600.)  But  what  the  rule  would  be  in  case  of  speci;:l 
appearance  has  not  been,  decided.  By  such  an  a[)- 
pearance,  the  plaintiff  certainly  has  notice  that  the  de- 
fendant has  employed  an  attorney  and  instituted  a 
proceeding  which,  if  successful,  may  entitle  him  to 
recover  of  the  plaintiff  the  costs  of  motion.  When, 
after  such  knowledge,  the  plaintiff  discontinues,  he 
takes  the  risk  of  being  able  to  show  that  the  motion  is 
without  foundation.  If  he  shows  that,  then  he  may 
well  claim  that  the  discontinuance  is  complete.  If  he 
does  not  show  that,  then  he  should  pay  the  costs  of 
the  motion  before  getting  the  benelit  of  the  discontin- 
uance. 

No  defense  is  presented  to  the  motion  except  the 
order  of  discontinuance.  The  order  appointing  the 
guardian  is  irregular  by  reason  of  the  consent  not 
being  acknowledged  as  required  by  section  472  of  the 


-en^IL    PROCEDURE    REPORTS.  307 

Engle  V.  Fischer. 

Code.  For  tbat  reason  an  order  may  be  entered  vacat- 
ing the  proceedings  for  the  appointment  of  the  guar- 
dian and  dismissing  the  action  with  $10  costs  of  mo- 

vtion,  with  leave  to  plaintiff,  within  ten  days  after  the 
service  of  the  order  to  be  entered  herein,  and  upon 
payment  of  such  costs  of  motion,  to  enter  an  order  of 

'discontinuance. 


ENGLE,  Appellant  ».  FISCHER,  Respondent, 

SuPEHion  Court  of  the  City  of  New  York,  Gene- 
ral Term,  November,  1884. 

~   §  401. 

Statute  of  Limitations.— What  comitig  into  the  state  does  net  amount  to 
a  '"'■returu  "  thereto,  —  Construction  of  statute. 

Where  one  F.,  a  resident  of  Austria,  accepted  a  draft,  and  there- 
after and  before  it  became  due,  absconded  from  Austria  and  came 
to  the  city  of  New  York,  and  there  assumed  and  lived  under  a  fic- 
titious namefor  the  purpose  of  concealing  himself  from  his  cred- 
■-    itors, — Held,  that  the  statute  of  limitations  did  not  commence  to 

■  run  as  against  the  iiolderof  the  draft  until  he  discovered  the  presence 
of  F.  within  the  state  ;[^,^]  that  the  coming  into  this  state  and  con- 
tinuing therein  concealed  under  a  fictitious  name  to  avoid  the 
pursuit  of  creditors,  was  in  legal  effect  no  coming  in  until  the  day 
that  he  was  discovered. [','] 

In  the  construction  of  statutes  the  judge  is  vested  with  authority  to 
disregard  the  letter  in  order,  in  a  given  case,  to  attaia  the  ends  cf 
justice.  ["] 

Troup  V.  Smith  (2  Johns.  Z2)  distinguished.  ["] 

(^Decided  December  1,  1884.) 

Appeal  from  a  judgment  entered  upon  a  trial  be- 
fore the  court  without  a  jury,  a  trial  by  jury  having 
been  waived. 


308  CIVIL    PROCEDURE    REPORTS. 

Englu  V.  Fischer. 

The  facts  are  stated  in  the  opinion. 

B.  Lewinso7i,  for  plaintiff,  appellant- 

The  word  "return"  as  applicable  to  a  debtor,  it 
has  been  held,  applies  as  well  to  persons  coming  from 
abroad,  as  to  citizens  of  the  conntry  going  abroad  for 
a  temporary  purpose  and  then  returning.  Angell  on 
Lim.  §  206  ;  3  Parsons  on  Contracts  (6rh  ed.)  [105]  and 
numerous  cases  there  colhited  ;  Ruggles  v.  Keeler,  3 
Johns.  263 ;  Carpenter  v.  Wells,  21  Bart).  594  ;  Bnl- 
ger  V.  Roche,  11  PlcJc.  {Afass.)  30  ;  Cole  v.  Jessup,  3 
Barb.  313  ;  Dwight  v.  Clark,  7  3fass.  515. 

Such  an  effect  should  be  given,  if  possible,  to  the 
provisions  of  the  statute  of  limitations  as  Avili  not 
impute  to  the  legislatjire  an  intention  to  do  an  injus- 
tice, especially  as  to  clauses  in  the  statute  which  pur- 
port to  save  demands,  wh<^re  there  has  been  no  oppor- 
tunity of  suing  the  defendant,  by  reason  of  his 
non-residence,  absence  or  otiierwise,  Crosinr  v.  Tam- 
linson,  2  3fod.  B.  {Eng.  K.  B.)  71 -.73;  Forbes  v. 
Smith,  30  Eng.  Laio  &  Eq.  602  ;  Chandler  v.  Villett, 
2  Saund.  {Eng.  K.  B.)  120,  121  ;-  Sage  v,  Hawley,  16 
Conn.  114-115  ;  Swayn  tj.  Stejihens,  3  Cro.  {Eng.  K. 
B.)  245  ;  Lnfonde  v.  Ruddock,  24  Eng.  Law  &  Eq. 
249;  See  opinion  of  Maulk,  J.;  William  t.  Jones,  13 
Bast.  {Eng.  K.  B.)  440  ;  Gillman  v.  Cults,  3  Foster's 
{N.  H.\  384,  385  ;  Smith  v.  Bond,  8  Ala.  386.  .  .  . 
The  policy  of  the  law  is  not  to-make  contracts  void 
to  a  greater  extent  than  tlie  mischief  to  be  remedied 
renders  necessary.  Broom  8  Legal  Maxims,  (7th  (h1.) 
727. 

The  intent  plainly  expressed  is,  that  every  creditor 
shall  have  six  full  years  to  sue  in  the  courts  of  this 
state,  and  that  he  shall  not  lose  his  demand  except  by 
such  omission  to  ane  as  the  laws  deem  voluntary  and 
negligent.  2  R.  S.  295-299,  >j§  18,  24,  20,  27,  32-37, 
and  Code,  §§  330-412  ;  Ford  v.  Babcock,   2  Sa^id.  519, 


CIVIL    PROCEDURE    REPORTS.  3C9 

Enj^le  V.  Fisclicr. 

528,  52^ ;  Cole  v.  Jessup,  10  Bow,  Pr.  51i5 ;  Gilman 
X.  Cutts,  supra;  Smith  v.  Bond,  8  Ala.  '6SQ  \  Van- 
landingliam  ?).  Huston,  9  III.  125  ;  Harden  v.  Palmer, 
^  E.  D.  Smit7i^  172;  Richards  Z).  Maryland  Ins.  Co., 
^  Crancli  {U.  S.)  %\,  m. 

It  was  obvious  there  might  be  cases  where.  .  .  . 
there  would  be  an  entire  omission  to  commence  a  suit 
within  the  time  limited, without  the  least  fault  or  neg- 
lect on  the  part  of  the  claimant,  and  where  the  prin- 
ciples of  natural  justice  would  therefore  i)lainiy  re- 
iquire  that  his  rights  should  be  saved.  Sage  v.  Hawley, 
supra. 

When  cases  present  themselves  in  which  no  laches 
can  be  imputed  to  the  plaintiffs,  but  great  injustice 
would  be  done  by  applying  to  such  cases  the  effect 
of  the  statute,  the  conclusion  of  reason  and  of  the 
law  is,  that  such  cases  were  not  in  the  minds  of  the 
legislature  when  enacting  that  law.  Richards  v. 
Maiyland,  supra. 

The  courts  have  uniformly  so  "construed"  the 
statute  as  to  bring  it  within  these  general  principles. 
Olcott  V.  Tioga  R.R.  Co.,  20  N.  Y.  223. 

It  has  been  repeatedly  held  that  a  defendant  who  is 
eimply  out  of  the  state  is  beyond  seas,  so  as  to  bring 
the  demand  within  saving  clause  of  statutes,  using 
that  phraseology.  '  Anonymous,  1  Shower  {Eng.  K. 
jS.)  91  ;  Ruckmaboye  ?j.  Mettichund,  32  Eng,  Laio  cfc 
Eq.  85;  Lane  v.  Bennett.  1  Mees  &  W'lsb.  {Eng. 
Exch.)  70;  Murray  ».  Baker,  3  Wheat.  {U.  8.)  141  ; 
Bank  of  Alexandria  v.  Dyer,  14  Peters  {U.  S.)  141  ; 
Pancoast  v.  Addison,  1  Ilarr.  &  Johns.  {Md,)  150. 
And  these  clauses  have  been  applied  to  foreigners 
who  never  were  in  the  state  until  the  suit  was  brought, 
and  who  could  not  "return,"  within  the  liteial  or  or- 
dinary sense  of  that  term,  Ruggles  v.  Keeler,  3 
Johns.  267;  Dwight  n.  Clark,  7  Mass.  515;  Bulger  o. 
Roche,  11  Pick.  {Mass.)  09,  40;  Van  Hemert  e..  Porter, 


310  CIVIL    PROCEDTTRE    REPORTS. 

Engle  V.  Fischer, 
*_ i<  - 

11  Mete.  {3Ias&.)  210;  Graves  ».  Week,  19  Vermont^ 
179  ;  Forbes  x.  Smith,  30  Eng.  Law  cfe  Bq.  602.  So 
the  phrase  out  of  the  state  embraces  all  defendants 
who  are  beyond  its  jurisdiction,  so  as  to  disable  their 
creditors  from  commencing  actions  against  them,  even 
though  they  are  v^rithin  its  territory.  Sleight  v.  Kane, 
1  Johns.  Cas.  286  ;  Smith  ??.  Bond,  5?/j9ra.  So,  though 
their  condition  was  such  when  the  demand  fell  due 
that  they  could  neither  return,  nor  even  come  into  the 
state  afterwards;  e.  g.^  where  they  have  died  abroad, 
never  having  been  here.  Davis  v .  Garr,  6  N.  Y.  124  ; 
Douglass  v.  Forrest,.  4  Bing.  {Eng.  C.  P.)  Q^Q  •,  Benja- 
min 0.  Degroot,  1  Denio^  151 ;  Lafonde  z.  Ruddock, 
24  Eng.  Law  &  Eq.  2'SQ.  The  above,  and  simihir 
phrases,  even  when  used  in  saving  clauses  relating  to 
the  absence  of  the  creditor,  ha\e  been  uniformly  ap- 
plied in  the  same  extensive  and  liberal  sense  to  save 
the  demand.  Lafonde  c.  Ruddock,  24  Eng.  Law  & 
Eq.  239  ;  Townsend  v.  Deacon,  3  ExcJteq.  {Eng.)  706  ; 
Strithorst  c.  Graeme,  2  Win.  BL  {Eng.  K.  B.)  723; 
Williams  v.  Jones,  13  East,  {Eng.  K.  B.)  439.  So  tiie 
word  "  person"  in  such  and  like  clauses  is  sufficiently 
comprehensive  to  embrace  foreign  corporations  as  well, 
as  natural  persons.  Olcott  v.  Tioga  R.  R.  Co.,  20  JV. 
Y.  223 ;  Louisville  v.  Leston,  2  now.   U.  S.  497. 

By  similar  reasoning,  and  by  like  rule?  of  con-, 
strnction,  the  courts  have  established  the  i^rinciple — 
that  in  order  to  set  the  statute  in  operation  and  lo 
take  a  case  out  of  the  exceptions  created  by  se(ti(  ii 
401,  the  debtor's  return  fo  (/.  e.  "coming  into")  the 
state  must  be  public  and  notorious. 

A  return  .  .  .  within  the  chartered  limits  of  tlie^ 
state,  but  to  which  the  jurisdiction  of  the  state  did 
not  extend,  would  not  be  within  the  exception  of  the 
statute,  any  more  than  a  secret  and  clandestine  re- 
tuin  within  the  jurisdiction  of  the  state.  In  both, 
cases  the  intent  of  the  statute  would  be  defeated^— the 


CIVIL     PROCEDURE     REPORTS.  3U 


Eiuvle  V.  Fisclier, 


opportunity  afforded  rli3  creditor  of  collecting,  or  at 
least  suing  for  his  debts.  Smith  v.  Bond,  8  Ala. 
386 ;  See  3  Parsons  on  Contracts,  *9G,  and  cases 
cited  ;  Angell  on  Lvni.  §  20G  ;  Ford  v.  Bubcock,  2 
Sand.  518  ;  Cole  v.  Jessup,  10  N.  Y.  96,  102  ;  S.  C,  2 
Barb.  309;  Fowler  v.  Bailey,  3  3Iass.  201  ;  Little  v. 
Blnut,  33  Id.  359  ;  Randall  v.  VVilkins,  4  Benio.  577  ; 
Fowler  c.  Hunt,  \0  Joluis.  464. 

The  statute  ...  in  providing  that  the  limita- 
tion slioald  commence  on  the  debtor's  return  {i.  e. 
"coming")  into  the  state,  must  intend  such  a  return 
("coming  into")  as  would  enable  his  creditors,  using 
reasonable  diligence,  to  arrest  his  body  as  security  for 
the  debt.  By  returning  ("  coming  ")  into  the  state 
must  have  been  intended  a  return  to  dw^ell  within  its 
jurisdiction,  and  not  to  lurk  in  it  as  a  place  of  con- 
cealme-nt.  Fowler  v.  Bailey,  supra.  To  avoid  the 
exce[)tion  in  the  statute,  the  defendant  is  bound  to 
show^  either  that  plaintiff  knew  of  his  return  ("  com- 
ing"), or  that  his  return  was  so  public  as  to  amount  to 
constructive  notice  or  knowledge.  Little  v.  Blunt, 
supra. 

This  is  a  case  in  which  the  defense  has  its  origin  in 
a  perpetrated  fraud.  It  is  a  fundamental  rule  of  law 
that  no  defense  can  arise  out  of  fraud  and  no  defense 
can  be  sustained.  Justice  Milleh,  of  the  United  States 
supreme  court,  in  a  case  not  otherwise  authorative  of 
this  one  well  expresses  this  principle  in  these  words, 
which  have  been  cited  with  distinct  approval  by  that 
court  in  Upton  v.  McLaughlin,  105  U.  S.  640,  and  re- 
cently in  Rosenthal  i\  Walker,  111  U.  8.  191  :  "They 
(the  Statutes  of  Limitations)  were  enacted  to  prevent 
pnrties  from  asserting  rights  after  the  lapse  of  time  hiul 
destroyed  or  impaired  the  evidence  which  would  show 
that  such  lights  never. existed,  or  liad  been  satislled, 
triinsferred  or  extinguished,  if  they  ever  did  exist. 
To  hold  that  by  concealing  a  fraud  or  by  committing. 


312  CIVIL    PROCEDURE     REPORTS. 

Eiigle  V.  Fischer. 

a  fraud  in  a  manner  tliat  it  concealed  itself  until  such 
time  as  the  party  committing  the  fraud  could  plead 
the  statute  of  limitations  to  protect  it,  is  to  make 
the  law  which  was  designed  to  prevent  fraud  the 
means  by  which  it  is  made  successful  and  secure. 
Bailey  v.  Glover,  21  Wall.  {U.  S.)  349,  and  see  Poillon 
X.  Lawrence,  77  N.  Y.  211. 

C.  E.  Ruslimore  ( TF.  &  8.  W.  I^ullerton,  attor- 
neys), for  defendant-resi)ondent. 

The  defendant  having  been  in  this  state  when  the 
cause  of  action  accrued,  and  having  remained  in  it 
until  the  commencement  of  this  action,  a  period  of  ten 
years,  the  statute  of  limitations  has  run  against  the 
claim 

That  fraud  which  it  is  claimed  was  practiced  by  the 
defendant  in  concealing  himself  by  a  change  of  name, 
does  not  prevent  the  running  of  the  statute.  That 
fraud  or  concealment  on  the  part  of  the  debtor  does 
not  Y)revent  the  running  of  the  statute  in  actions  at 
law,  is  well  settled  in  this  state.  The  rule  in  the 
United  States  courts  as  administered  in  Adams  ??. 
Stern,  29  Hun,  280,  seems  to  be  different  so  far  as  the 
concealment  of  a  cause  of  action  is  concerned.  Judge 
Davis  in  deciding  that  case,  put  it  upon  the  ground 
that  "under  the  established  rules  of  the  United  States 
courts,  the  question  of  a  frauduli^nt  concealment  was 
a  proper  one  to  be  submitted  to  the  jury."  No  case 
can  be  found  in  this  state  whei-e  concealment  of  the 
debtor  operated  to  lake  the  case  out  of  the  statute  and 
the  contrary  is  expre.ssly  held.  Troup  v.  Smith,  20 
Johns.  32  ;  Allen  v.  Mille,  17  Wend.  202  ;  Humbert  n. 
The  Rector,  &c.  of  Trinity  Church,  24  Wend.  587; 
Foot  7).  Farrington,  41  N.   Y.  164. 

By  the  Court. — Van  Vorst,  J. — The  defendant, 
residing  in  Austria,  in   the  month  of  May,  1873j  in 


CIVIL    PROCEDURE     REPORTS.  313 

Engle  V.  Fischer. 

curred  the  obligation  as  acceptor  of  the  draft,  which  is 
the  subject  of  this  action.  In  July,  1873,  the  defend- 
ant absconded  from  Austria  and  came  to  the  city  of 
JMew  York,  and  "for  the  puri)Ose  of  concealing  him- 
self from  his  creditors  assumed  a  fictitious  name,  and 
has  ever  since  borne  and  been  liiding  under  such  ficti- 
tious name."  The  draft  matured  after  the  defendant 
tooli  iif)  his  residence  in  New  York.  In  April,  1882, 
the  plaintiff,  the  owner  of  the  draft,  discovered  de- 
fendant in  the  city  of  New  York,  living  under  his  fic- 
titious name,  and  demanded  payment,  which,  being 
refused,  he  commenced  this  action. 

Upon  the  trial  the  plaintiff's  complaint  was  dis- 
missed upon  the  ground  that  the  action  not  having 
been  commenced  within  six  years  after  the  cause  there- 
of accrued,  the  same  is  barred  by  the  statute  of  limita- 
tions. 

The  question  arises  whether  the  defendant  was 
within  the  state  during  the  period  in  question  in  the 
sense  contemplated  by  the  statute.  It  has  been  said 
that  the  statute  of  limitations  "'is  a  shield,  and  not 
a  weapon  of  offense."     I  am  quite  sure  that  it  was  no't 

designed  to  defeat  justice.  It  should  not  shelter 
[']     a  man  who,  designing  to  defeat  the  vigilance  of 

his  creditors,  comes  into  this  state  and  conceals 
himself  under  a  fictitious  name,  thus  doing  all  in  his 
power  to  prevent  his  creditors  from  reaching  and  pro- 
secuting him  within  the  time  limited.  In  the  construc- 
tion of  statutes  the  judge  is  vested  with  authority  to 

disregard  the  letter  in  order,  in  a  given  case,  to 
[']     attain  the  ends  of  justice.     This  power  has  been 

repeatedly  asserted  and  practiced  upon  the  high- 
est authority,  {Liehefs  Hermeneutlcs  [3d  ed.]  note- 
page  285, "and  cases  cited.) 

If  this  defendant  is  shielded  by  the  strict  letter  of 
the  statute,  he  is  certainly  not  by  its  true  spirit  and 
intent,     (CW^,  §  40k) 


314  CIVIL    PROCEDURE     RKPORI'S. 

Eagle  V.  Fischer. 

In  decisions  with  respect  to  the  former  statutes  of 
limitations,  the  word  "return,"  found  in-the  section 
above  cited,  has  been  held  to  a[)i)]y  as  well  to  a  person 
coming  from  abroad,  where  he  iiad  resided,  as  to  a  cit- 
izen of  tliis  state  going  abroad  lor  a  time  and  then  re- 
turning,    (Fowler  v.  Hunt,  10  Johns.  4G4.) 

It  has  also  been  decided  that  the  return  must  not 
be  clandestine  and  with  the  intent  to  defraud  creditors. 
The  "return"  must  be  public  and  under  such  circum- 
stances as  to  give  the  creditors  an  opportunity,  by  the 
nse  of  ordinary  diligence  and  due  means,  to  prosecute 
the  debtor.  (Cole  v.  Jessup,  10  N.  Y.  96,  103  ;  Randall 
t).  Wilkins,  4  Denio,  577;  Ford  o.  Babcock,  2  Sand. 
518 :  Fowler  v.  Bailey,  3  Mass.  201  ;  Little  v.  Blunt,  33 
Id.  359.)  • 

A  coming  into  this  state  with  the  design  of  contin- 
uing therein,  concealed  under  a  lictitious  name  to 
avoid  the  pursuit  of  creditors,  is  in  legal  effect  no 
[*]  coming  at  all  until  the  day  that  he  is  discovered. 
The  construction  contended  for  by  the  respondent 
would  make  this  statute,  whi(!h  was  designed  to  pre- 
vent fraud,  "  the  means  by  which  it  is  made  success- 
ful and  secure." 

The  case  of  Poillon  v.  Lawrence  (77  N.  T.  207), 
which  arose  under  the  bankrupt  law,  has  some  anal- 
ogy. In  that  case  the  bankrujjt  contracted  a  debt  in 
one  name,  and  obtained  a  discharge  under  a  different 
name,  designedly  omitting  in  his  proceedings  refer- 
ence to  any  fact  which  would  disclose  that  he  was  the 
same  person  who  was  the  debtor  to  the  plaintiff.  Ra- 
PALLO,  J.,  said  :  "It  can  hardly  be  supposed  that  any 
court  would  willingly  sanction  a  fraud  of  that  descrip- 
tion." 

Practically    this    defendant    perpetrated  a    fraud 

equallj'  obnoxious.     Contracting  a  debt  in  a  foreign 

country  under  his  true  name,  he  then  comes  to 

[']     this  country  and  lives  under  an  assumed  name,  in 


CIVIL    PROCEDURE    REPORTS.  315 

"Woodford  v.  Rasbach. 

this  way  to  conceal  himself  from  his  creditors.  Under 
such  circumstances  he  cannot  chiim  the  protection  of 
the  statute  of  limitations. 

Troup  t).  Smith  (20  Johns.  32),  and  other  cases  cited 
by  respondent's  counsel,  involve  the  question  of  a . 
[']    fraudulent  concealment  of  the  cause  of  action,  but 
not  of  the  person  of  the, defendant ;  that  is  a  whol- 
ly-different question. 

The  judgment  below  is  reversed  and  a.  new  triat: 
ordered,  with  costs  to  abide  the  event...  • 


WOODFORD  V.  RASBACH, 

WOODFORD  ?).  CHAPMAN  et  al. 

Supreme  Court,  Oswego  County,   Special  Term^.. 
February,  1884. 

§§  1260,  3251. 

Attorney. — Power  of  to  settle  and  discontinue  action  and  satisfy  judg^ 

ment. — Effect  of  settlement  of  action  and  satif  action  of 

judgment. — Report  of  referee  on  motion. 

Although  the  opinion  of  a  referee  appointed  on  a  motioa  is  not  con-, 
elusive  to  tlie  court,  it  is  entitled  to  respectful  consideration. ['J 

Wbere  an  action  has  been  settled  and  discontnuiod,  and  a  judgment 
satisfied  of  record  by  the  attorney  for  the  p'uintiflf  therein  without 
authority  there  seems  to  be  no  doubt  as  to  tlie  power  of  the  court 
upon  motion  to  set  aside  tiie  discontinuance  and  satisfaction,  and 
substitute  another  attorney  in  the  place  of  said  attorney. [*] 

The  attorney  of  record  in  an  action  by  virtue  of  liis  retainer  as  such 
witiiout  the  consent  of  his  client,  and  withoutany  new  authority 
from  him.  may  discontinue  an  action  before  judgment,  and  after 
judgment  may  satisfy  the  judgment  itself,  at  any  time  within  two 
years  after  Cling  the  jvagment-roll,['J  but  he  can  only  do  the  iiist 
in  such  a  manner  as  shall  dispose  of  the  action,  without  affecting 
bis  client's  right  to  bring  a  new  action  for  the  same  cause;  and  the 


S16  CIVIL    PROCEDURE    REPORTS. 

"Woixiford  V.  Rasbacli. 

second  only  uj)ou  tlie  a<;tu;il  payment  iii  moory  i>i  ilie  lull  asiiDUiit 
of  till'  jii:lgiuciit.  [^J 

VVIieiL'  a  stipulation  lO!'  t!ie  ilisC>>utinuance  of  an  action  executed  l»y 
the  aitmnLys  of  record,  and  aa  oriler  discontiiminvj  the  actjon  fn- 
teitJ  upon  it  professed  ia  terms  to  rest  upon  u  ec-ttlenient  oi  the 
ca^c, — j'leld,  that  tliey  would,  so  long  as  tliey  were  allowed  to  stand, 
be  a  l)ur  to  any  other  action  brougljt  for  the  same  cause. ['J  Such 
a  diseoutinuaDce  and  a  certificate  of  the  satisfaction  of  a  judgment 
Jiiade  ou  payment  of  a  part  only  of  the  money  due  on  the  judg- 
ment, are  not  within  the  power  of  the  attorney  of  record  to  execute, 
unless  upod  some  special  authority  given  by  tlie  client. ['j 

A  eeitifi'jate  oi  the  satisfaction  of  a  judgment  upon  the  payment  of 
part  thereoi  and  a  stipulation  that  an  action  be  di.scoutinued,  rest- 
ing in  terms  upon  a  settlement,  botii  executed  by  the  attorney  of 
record,  are  as  effective  to  discharge  tlie  plaintiif's  claims  as  would 
be  releases  under  seal,  executed  by  him  and  the  authority  to  exe- 
cute them  should,  tiierefore,  be  as  distinctly  showji  us  that  to 
-execute  for  another,  any  sealed  instrument.  [''J 

Motion  by  plaintiff  to  set  aside  a  certificate  of  sat- 
isfaction of  the  judgment  recovered  in  the  first  action 
and  astipulation  and  order  discontinuing  the  second 
action,  and  for  an  order  removing  the  plaintiff's  at- 
torney of  record  in  each  action. 

The  first  of  the  above  entitled  actions  was  begun  in 
January,  1874,  for  malicious  prosecution  and  false  im- 
prisonment. It  was  twice  tried,  at  both  of  which  the 
jury  disagreed.  A  third  trial  in  October,  1876,  result- 
ed in  a  verdict  for  the  i^laintiff  for  $9,890,  which,  upon 
a  motion  upon  the  judge's  minutes,  was  set  aside  and 
a  new  trial  ordered.  On  the  fourth  trial,  June  14, 
1879,  the  plaintiff  had  a  verdict  f()r$'jO,()()0.  A  motion 
for  a  new  trial  on  the  judge's  minutes  was  denied,  and 
on  February  17,  1880,  judgment  was  entered  ujjon  the 
verdict,  including  interest  and  costs  for  $11,500.17. 
An  appeal  to  the  general  term  was  taken  from  the 
judgment  which  was  pending  June  11,  1881.  The  sec- 
ond action  was  begun  about  May,  1879,  and  originally 


CIVIL    PROCEDURE    REPORTS.  3T7 

Woodford  V.  RiisltacI). 

impleaded  David  H.  Rasbacli  the  defendant  in  the 
first  suit,  as  a  party  defendant.  On  motion  made  after 
the  second  verdict  in  the  first  action,  the  complaint  in 
the  second  action  was  dismissed  as  to  David  H.  Ras- 
bacli, on  the  ground  that  the  cause  of  action  was,the 
same  in  the  two  actions,  and  that  the  former  action 
with  the  verdict  recovered  in  it  was  a  bar  as  to  him  to 
the  second  action;  but  the  action  was  allowed  to  pro- 
ceed against  the  other  defendants.  On  the  11th  day 
of  June,  1881,  this  action  was  on  the  calendar  for  trial 
at  the  circuit  to  commence  in  Madison  count}'^  June  13, 
1881.  Judgment  was  asked  in  this  action  for  $r)0,000 
damages,  John  W.  Boyle  of  Utica,  was  attorney  of 
record,  and  J.  I.  Sayles  of  Rome,  was  counsel  for  the 
plaintiff  in  both  actions. 

On  June  11,  1881,  John  W.  Boyle,  with  tl^  approv- 
al of  J.  I.  Sayles,  but  without  the  presence  or  knowl- 
edge of  the  plaintiff,  agreed  with  the  defendants  upon 
terms  of  settlement  of  both  actions,  to  the  effect,  that 
upon  the  payment  by  them  of  $10,000,  and  the  assign- 
ment by  them  to  the  plaintiff,  or  to  his  attorney,  of  a 
judgment  against  the  plaintiff  and  his  father  and 
brother  for  $3,807.59,  recovered  August  80,  187H,  and 
the  withdrawal  of  specifications  tiled  in  the  United 
States  district  court  to  })revent  the  discharge  of  the 
plaintiff  in  bankruptcy,  the  judgment  in  the  first  ac- 
tion shall  be  discharged  and  the  second  action  discon- 
tinued. The  defendants  to  carry  the  said  settlement 
into  effect,  immediately,  on  the  same  day  paid  to 
John  W.  Boyle,  the  plaintiff's  attorney,  $10,000  and 
also  gave  to  him  an  assignment  of  the  judgment 
against  the  plaintiff  and  his  father  and  brother,  and 
gave  a  stipulation  witlidrawing  the  specifications  above 
referred  to,  filed  in  the  United  States  district  court. 
The  plaintiff's  attorney  to  carry  said  settlement  into 
effect,  also  at  the  same  time  delivered  to  the  defend- 
ant's attorney  a  satisfaction  of  the  judgment  against 


«18  X;iVIf  PROCEDURE    REPOITl'S. 


Woodford  V.  Rasbach. 


David  H.  Rasbach,  executed  and  acknowledged  by 
J(»hn  W.  Boyle  as  attorney  for  the  plaintiff,  and  a-lso 
.'I  stipulation  of  discontinuance  in  the  second  action, 
which  satisfaction  and  stipulation  were  on  the  same 
(lay  liled  by  the  defendants  in  Madison  county  clerk's 
office,  and  the  said  judgment  against  Rasbach  dis- 
-chaiged  of  record,  and  an  order  entered  discontinuing 
the  sec-ond  action.  JSIone  of  the  mroney  or  papers  above 
referred  to  came  to  the  hands  of  the  i)lainiiff.  The 
settlement  itself  vi^as  repudiated  by  him,  and  written 
notices  to  that  effect  were  on  or  about  June  1(3,  1881, 
served  on  the  defendants  and  their  attorneys,  and  soon 
after  attorneys  were  employed  by  him  to  take  steps^to 
restore  the  said  actions  to  their  former  conditions. 

A  motion  was  made  in  the  first  action  to  set  aside 
the  certificate  of  satisfaction  filed,  and  the  discharge  of 
judgment  entered  thereon  in  Madison  county.  A  mo- 
tion was  made  in  the  second  action  to  set  aside  the 
order  of  discontinuance  entered  in  the  action,  and  to 
restore  it  to  its  place  on  the  circuit  calendar.  A  part 
of  the  relief  asked  in  each  motion  was  that  John  W. 
Boyle  be  removed  as  attorney  for  the  plaintiff  and 
other  attorneys  substituted. 

The  motions  were  referred  to  a  referee  to  take  tes- 
timony and  report  the  same  with  his  opinion  thereson 
to  the  court. 

This  has  been  done  and  the  motions  are  now  before 
the  court  upon  his  report  and  upon  the  original  affi- 
davits. 

i^.  K.  Fuller^  for  the  plaintiff  and  motion. 

The  court  has  power,  on  motion,  to  set  aside  a  sat- 
isfaction of  judgment,  or  an  order  of  discontinuance 
entered,  by  fraud  or  mistake.  Wardvvell  v.  Eden,  2 
Johns.  Cas.  121,  258  ;  Mechanics'  Bank  v.  Minthorn, 
\^  Johns.  244;  Campbell  v.  Bristoll,  19  Wend.  101^2; 
Lewis  0.   Woodruff,  lo   How.  Fr.  630 ;   Carstens   o. 


CIVIL    PROCEDURE    HEPORTS.  319 

Woodford  V.  Rasbach. 

Branstorf,  11  Abb.  Pr.  N:  S.  442  ;  Rooney  v.  2d  Ave. 
R.  R.  Co.,  18  iV.  Y.  368  ;  McGregor  v.  Comstock,  28 
:d.  237 ;  Murray  v.  Gibson,  22  Han,  386  ;  Marshall  v. 
Meech,  51  JV.  Y.  140  ;  Hutch  v.  Central  National  Bank, 
78  Jcl  487. 

An  attorney  is  not  authorized  by  his  retainer  to 
satisfy  a  judgment  without  full  payment  thereof  iu 
money,  nor  to  comi)romise  or  release  the  same  ;  nor 
can  he  settle  a  suit  and  conclude  his  client  in  relation 
to  thesubject  in  litigation  without  his  client's conseBt. 
Mandeville  v.  Reynolds,  68  JV.  Y.  528-540  ;  Beers  v. 
Hendrickson,  45  Id.  665  ;  Barrett  v,  Third  Ave.  R.  R. 
Co.,  45  Id.  628  ;  Shaw  v.  Kidder,  2  llow.  Pr.  244  ; 
Quinn  v.  Lloyd,  5  Abb.  Pr.  j¥.  S.  281  ;  Lewis  v.  Wood- 
ruff, 15  IIoio.  Pr.  639,  and  cases  cited;  Carstenso. 
Barnstorf,  11  Abb.  Pr.  iV.  S.  442. 

A  party  dealing  with  an  attorney  is  bound  to  take 
notice  of  the  scope  of  his  authority  as  such.  The  at- 
torney cannot  compromise  the  claim  of  his  client  or 
release  the  cause  of  action,  or  satisfy  a  judgment  in 
his  client's  favor  without  payment  in  the  absence  of 
special  authority.  There  is  no  implication  of  an  au- 
thority to  do  acts  of  this  character,  from  his  appoint- 
ment as  attorney  in  the  case;  and  a  party  dealing 
with  him  is  bound  to  take  notice,  that  they  are  not 
within  the  scope  of  his  authority.  Cox  v.  N.  Y.  C.  & 
H.  R.  R.  R.  Co.,  63  ^^.  Y.  414  ;  reversing  4  Ilim,  176 ; 
Benedict  v.  Smith,  10  Page,  126;  Ileyman  v.  Berenger, 
1  Abb.  N.  C-  315  ;  Doubleday  v.  Kress,  50  N.  Y.  410, 
reversing  60  Barb.  161. 

The  plaintiff's  attorney  should  be  dismissed  as  at- 
torney of  record  in  both  cases,  and  be  adjudged  not 
entitled  to  any  compensation  therein  for  his  miscon- 
duct. Nor  should  Mr.  Snyles  have  any  compensation 
for  like  reason  within  the  case  of  Chattield  v.  Sira« 
mons,  Q2  N.  Y.  209  ;  Andrews  v.  Synge,  94  Id.  16. 


320  CIVIL    rnOCEDL'llE    RI'.PORTS. 

\V()Otlford  V.  llasbacli. 

Boyle^  Adams  &  Kernan,  opposed. 

Churchill,  J. — Two  questions  are  presented  here  : 
1.  Is  the  relief  desired  properly  sought  l)y  motion  ?  2. 
If  so,  has  the  plaintiff  shown  himself  entitled  to  it  ? 

The  referee  has  found  for  the   plaintiff   on   both 

of  these  questions,  and  though  his  opinion  may 

[*]     not   be  conclusive   upon   the   court  (Marshall   v. 

Meech,  61   N.   Y.  140),  it  is  certainly  entitled   to 

respectful  consideration. 

There  seems  no  question   as  to  the  power  of  the 

court  at  special   term,  to  grant,  upon  morion,  the 

[*]     relief  now  sought.     In  many  cases,  the  court  has 

deemed  it  unwise  to  exercise  the  [xjwer  and  has 

left  the  parties  to  establish  their  supposed  rights  by 

action. 

In  Conchlin  v.  Taylor  (68  N.  Y.  221),  the  court  of 
appeals  approved  an  order  of  the  special  term,  which 
vacated  a  satisfaction  piece  without  prejudice  to  an 
action  to  affirm  its  validity. 

The  lapse  of  time,  the  intricacy  of  the  fads  and  the 
necessity  of  bringing  ifi  parties  other  than  the  parties  to 
the  record  in  order  to  a  proper  determination  of  the 
questions  involved,  are  reasons  which  have  induced 
courts  to  leave  parties  in  cases  of  this  kiud  to  an  ac- 
tion. 

These  reasons  do  not  seem  to  exist  here,  the  settle- 
ment was  promptly  disaffirmecl,  and  proceedings 
promptly  taken  to  set  it  aside.  There  is  but  one  ques- 
tion here — that  of  the  authority  of  the  plaintiff's  at- 
torney and  counsel  to  settle  these  actions. 

To  the  settlement  of  that  question,  neither  the 
attorney,  whose  authority  is  denied  ;  nor  the  Canas- 
tota  Bank,  who  are  mere  volunteers  in  their  connection 
in  the  matter,  are  necessary  or  proper  parties.  Every 
circumstance  necessary  to  be  presented  to  ui)hold  the 
settlement,  can  be  fully  presented  through  the  defend- 


CIVIL    PROCEDURE    REPORTS.  321 

Woodford  V.  llasbacii. 

ants  in  these  actions,  without  additional  parties. 
There  seems  no  good  reasons  why  these  matters  may 
not  be  determined  upon  motion. 

The  attorney  of  record,  by  virtue  of  his  retainer  as 
such  without  the  consent  of  his  client,  and  with- 
[']     out  any  new  authority  from  him,  ma\'  discontinue 
an  action    before  judgment;  and  after  judgment 
may  satisfy  and  dischaige  the  judgment  itself,  at  any 
time  within  two  j^ears  after   filing  the  judgment  roll 
(Gillard  v.  Smart,  6  Cow.  385  ;  Barrett  v.  3d  Ave.  R.  R. 
Co.,  45  N.  T.  628-636 ;  Code,  §  1260,  2  B.  S.  362,  §  24), 
but  he  can  only  do  the  first  in  such  a  manner  as  shall 
dispose  of    the  action    without    affecting   his  client's 
right  of  action  or  right  to  bring  a  new  action  for 
[*]     the  same  cause;  and  the  second  only  upon  the  ac- 
tual payment  in  money  of  the  full  amount  of  the 
judgment.  "Cox 'y.  N.  Y.  C.  R.  R.,   63  JV.  Y.  414-419  ; 
Barrett  v.  3d  Ave.  R.  R.,  A5  Id.  628-635  ;  Beers  «.  Hen- 
drickson,  45  Id.  685-670  ;  Gar.lard  «.  Smart,   6   Coio. 
385. 

In  one  of  these  cases  the  stipulation  of  discontinu- 
ance executed  by  the  attorney  of  record  and  the  order 
entered  upon  it  profess  in   terms  to  rest  upon  a 
[']     settlement  of  the  case  and  would,  therefore,   so 
long  as  they  are  allow^ed  to  stand,  be  a  bar  to  any 
other  action  brought  for  the  same  cause. 

In  the  other  case  tlie  certificate  of  satisfaction  by 
virtue  of  which  the  judgment  has  been  discharged  of 
record,  was  given  by  the  attorney  of  record  upon  the 
payment  to  him  of  a  part  only  of  the  monej^due  upon 
the  judgment. 

Keither    instrument    was,    therefore,    within    his 
power  to  execute  as  attorney  of   recoid,  and   if 
[']     sustained,  must  be  so  upon  some  special  author- 
ity given  by  his  client. 

The  instruments  executed  in  these  cases,  if  allowed 
to  stand,   are   as  effective    to  discharge    the   plaint- 
VoL.  VI.— 21 


822  CIVIL    PROCEDURE    REPORTS. 

Woodford  V.  llasbach. 

iffs  claims  as  would  have  been  releases  under  seal 
[']  executed  by  him  (Beers  v.  Henderson,  45  JV.  Y. 
665). 

The  authority  to  execute  them  should,  therefore, 
be  as  distinctly  shown  as  tliat  to  execute  for  another 
any  sealed  instrument. 

Mr  Sayles,  the  counsel  of  the  plaintiff,  whose  right 
to  settle  these  cases  was  affirmed,  perhaps  in  stronger 
terms  than  that  of  the  attorney  of  record,  did  not  as- 
sume for  himself  to  have  authority  to  execute  any 
instrument  which  should,  release  the  j)laintiff's 
chiims. 

The  referee  to  whom  these  motitms  were  sent  has 
found  that  the  certiticate  ol"  satisfaction  of  the  judg- 
ment and  the  sti[mlafion  of  disconfinnance  of  the 
action  were  executed  without  authority  from  the 
l)laintiff  ;  in  this  I  think  his  report  warranted  by  the 
evidence.  If  the}"  are  without  authority,  the  discharge 
of  the  judgment  upon  the  record  and  the  order  of  dis- 
continuance entered  are  also  without  authority,  and 
with  them  should  be  set  aside.  It  seems  quite  obvi- 
ous that  (he  parties  to  this  settlement,  on  both  sides, 
acted  in  good  faith. 

The  cause  of  action  in  these  two  actions  had  been 
adjudicated  to  be  the  same  and  that  causeof  action 
had  been  twice  valued  by  a  jury — once  at  $0,890,  and 
again  at  810,000. 

It  was  the  riglit  of  the  defendants  at  any  time,  to 
l^ay  the  judgment  for  ten  thousand  dollars  and  costs, 
entered  in  the  first  action.  ai;d  thereupon  compel  a 
discontinuance  of  the  second  action  upon  the  payment 
of  the  costs  of  that  action.  'I'lie  amount  received  by 
plaintilTs  attorney  was  $10,000  in  monej',  with  an  as- 
signment of  a  judgment  against  the  plainliff  aud  his 
father  and  brother  for  $3,807.59  and  interest,  from 
August  30,  1873  (amounting  to  nearly  $0,000),  and  the 
withdrawal  of  opijosition  to  the  plaintiti's  discharge 


CIVIL    PROCEDURE    REPOKTS.  323 

Woodford  V.  Rasbach. 


in  bankruptcy.  The  amount  insisted  upon  and  received 
ui)ou  the  one  side,  and  the  amount  paid  on  the  otlier, 
seems  to  establish  that  the  defendants  believed  Messrs. 
Boyle  &  Saj-les  authorized  to  settle,  and  that  each  par- 
ty acred  in  good  faith  in  the  settlement. 

The  defendants,  having  acted  in  good  faith,  should 
have  the  right  to  test,  by-action,  if  they  so  desire,  the 
authority  of  plaintiff's  attorney  and  counsel  to  agree 
upon  terms  of  settlement  which  would  bind  thejjlaint- 
iff.  An  order  should  therefore  be  made  setting  aside 
the  satisfaction  and  discontinuance  above  referred  to, 
tind  directing  the  return,  by  plaintiff's  attorney,  to  the 
defendants,  of  the  money  and  other  matters  received 
by  him  as  a  consideration  for  the  s;'me,  but  without 
prejudice  to  any  action  that  may  be  brought  by  the 
defendants,  or  either  of  them,  for  the  purpose  above 
indicated. 

The  present  relations  of  the  plaintiff  and  his  attor- 
ney, Mr.  Boyle,  as  shown  by  the  proceedings  on  these 
motions,  are  such  that  it  would  not  be  proper  that  the 
latter  should  continue  to  act  as  attorney  for  the  for- 
mer in  these  actions.  But  the  attorney  has  a  lien  upon 
the  cause  of  acMon  and  the  papers  in  his  hands  which 
he  has  not  forfeited,  and  which  must  be  satisfied  or  se- 
cured before  he  can  be  required  to  surrender  iiis  place 
as  attorney.  If  the  plaintiff  and  Mr.  Boyle  can  agree 
as  to  the  amount  of  the  hitter's  lien,  upon  paying  it, 
the  plaintiff  will  have  a  right  to  substitute  other  attor- 
neys. In  the  absence  of  such  agreement,  the  order  may 
require  that  upon  the  giving  of  a  bond  by  x>laintiff  to 
the  attorney  in  an  adequate  sum  (and  $;},000  would  seem 
to  be  such  sum),  conditioned  for  the  payment  of  any 
judgment  which  may  be  recovered  by  the  latter  against 
the  former  for  his  charges,  services  and  disl)ursemenfs 
in  the  above  entitled  actions,  and  in  matters  connected 
with  them,  or  either  of  them,  the  attorney  be  required 
to  surrender  the  papers  and  the  management  of  these 


324  CIVIL     PROCEDURE     KEPORTS. 

Gocttling  V.  Biohler. 

actions  to  snch  attorneys  as  the  plaintiff  may  desig- 
nate, and  that  an  order  be  entered  substituting  such, 
attorneys  for  the  present  attorney  oi  record. 

Ten  dollars  costs  of  each  motion,  with  necessary 
disbursements  for  referee's  fees,  to  be  paid  by  the  de- 
fendants.    68  N.  Y.  221^224  f  Code,  §  3251. 


GOETTLING,  Appellant,  o.BIEHLER,  et  al.,  Res- 
pondents. 

Supreme  Coukt,  First  Department,  General  Term, 
May,  1884. 

§§  993,  1023. 

Findings. — How  disposed  of  bi/  court  before  which  action  tried. — Effect  of 
failure  to  make,  because  considered  unnecessary. 

The  provision  of  the  Code  (§  1033)  which  requires  tlie  court  or  referee 
before  whom  a  cause  is  tried,  at  or  before  tlie  time  wlien  tlie  decis- 
ion is  rendered,  to  note  upon  the  margin  of  the  statemmr.  of  facts, 
etc.,  wijich  he  has-lieen  requested  to  find  tlie  manner  in  tvhieh  encli 
proposition  hiis  been  disposed  of,  and  oither'filc  or  return  to  the 
attorney  the  s'atement  so  noted  is  mnnUatory  in  its  hinguage,  and 
no  authority  has  l)een  given  to  disreijard  it  when  tlie  propositicm 
may  be  considered  not  to  be  either  important  or  material.  The 
party  is  entitled  to  have  eacli  proposition  of  fact  or  l.ivv  acted  upon 
and  noted,  and  it  is  only  after  that  has  bren  done  that  the  materi- 
ality of  cither  is  to  be  regularly  considered. 

Where  one  of  tiie  parties  to  an  action  tried  in-fore  the  court  without 
a  jury,  before  the  decision  thereof  requested  the  court  to  make 
certain  findings  of  fact  and  law  which  the  court  refused  to  do  i>n 
the  ground  that  they  were  unnecessary, — Ildd,  that  this  was  not 
the  diiiposition  of  them  which  in  any  j)ossible  view  of  tlie  case  ti»e 
court  was  autiiorized  to  make;  th.it  an  appeal  from  the  judjimcut 
entered  on  the  decision  of  the  court  was  not  in  a  condition  to  be 
beard   until  such  findings  were  passed   upon,  and  for  that  purpose 

*  Concklin  v.  Taylor. 


CIVIL    PROCEDURE    REPORTS.  325 

Goettling®.  Bieliler, 

they  should  be  returned  to  tlic  justice  before  whom  the  trial  took 
place,  and  the  decision  of  the  appeal  suspended  until  the  proposi- 
tions should  be  considered  and  separately  noted. 

James  ?).  Cowing  (H'i  N.  T.  449),  followed. 

(Decided  October,  1884.) 

Appeal  of  judgQient  recovered  on  trial  at  special 
term. 

The  opinion  states  sufficient  facts. 
.  Hylancl  &  Zabriskle^  for  appellant. 
D.  S.  Itiddle^  for  respondent. 

Daniels,  J. — Before  the  decision  of  this  action  by 
the  court  before  wliich  the  trial  took  place,  the  find- 
ings of  fact  and  law  were  presen:;ed  and  submitted  to 
the  court,  and  the  court  refused  to  find  either  of  them 
because -they  were  considered  unnecessary. 

That  was  not  the  disposition  of  them,  which,  in 
any  possible  view  of  the  case  the  court  was  authorized 
to  make,  for  by  section-1023  of  the  Code  of  Civil  Pro- 
cedure it  lias  been  provided  and  directed  that  the 
court  shall,  at  or  before  the  time  when  the  decision  is 
rendered,  note  (in  the  margin  of  th«  statement  the 
nranner  in  which  each  piox^osition  has  been  disposed 
of,  and  must  either  file  or  return  to  the  attorney  the 
statement  so  noted.  This  provision  is  mandator}''  in 
its  language,  and  no  authority  has  been  given  to  dis- 
regard it  when  the  propositions  may  be  considered  not 
to  be  either  important  or  material.  The  party  is  entitled 
to  have  each  proposition  of  fact  or  law  acted  upon  and 
noted,  and  it  is  only  after  that  has  been  done  that  the 
materiality  of  either  is  to  be  regularly  considered. 

This  is  the  clear  intention  and  effect  of  this  part  of 
the  Code,  and  it  has  so  been  regarded  in  James  i\  Cow- 
ing (82  i\^.  r.  449).  Until  that  shall  have  been  done, 
this  appeal  is  UDt  in  a  coudition  to  be  heard. 


326  CIVIL    PROCEDU'RE    REPORTS.   " 

In  re  Powers. 

A  practice  somewhat  similar  existed  before  this 
section  went  into  effect.  And  when  it  was  not  fol- 
lowed it  was  considered  to  be  proper  to  send  the  case 
back  to  have  the  proposition  submitted,  passed  upon 
and  noted  (Bigler  v.  Pinkney,  80  N.  Y.  636). 

The  decision  of  the  points  presented  by  the  appeal 
should  be  suspended  until  these  propositions  shall  be 
considered  and  separately  noted,  and  to  have  that  done, 
they  should  for  tliat  purpose  be  returned  to  and  dis- 
posed of  by  the  learned  justice  before  whom  the  trial 
took  place. 

Davis,  P.  J.,  and  Brady,  J.,  concurred. 


In  re  THOMAS  POWERS,  Deceased. 

Surrogate's    Court,   New  York  County,  Novem->^ 
BER,   1884. 

§  2615. 

Probate  of  will. —  When  aliens  should  he  cited  to  attend. 

Where  amon*j  the  surviving  next  of  kin  of  a  dfcedfnt  who  wns  a  citi-'^ 
zen  of  the  United  States  and  died  intestate,  were  a  Iwother  and  a 
sister,  hoth  non-resident  aliens  : — IleUI,  that  such  brother  and  sister 
were  entitled  to  the  same  interest  in  the  decedent  real  estate  as 
they  would  have  taken  were  they  citizens  of  the  United  States  ; 
that  the  interest  of  the  brother  was  subject  to  be  defeated  by  the 
state,  and  only  by  the  state,  u|K)n  his  failure  to  lile  an  aflirinatiojj  or 
deposition  respecting  his  intended  citizensliip  in  the  planner  pro- 
vided in  Laws  of  1845,  chap.  It5,  |  1,  {.nd  that  both  sueli  brothei 
and  sister  must  be* cited  to  attend  the  probate  of  tiie  will. 

{Decided  December  10,  1884.) 

Ex  parte  [\\)\A\c.M\or\  for  citations  to  attend  probate 
of  the  will  of  Thomas  Powers,  deceased. 


CIVIL     PROCEDUIIE    J  IMPORTS.  327 

In  10  Powers. 

The  fact  sufficiently  appear  I'lom  the  opiinou. 

Willlavi  A.  Ilaggerty^  for  the  x^roponent  and  mo- 
tion. 

Is  it  necessary  on  such  probate  to  cite  the  non- 
resident alien  biother  and  sister  of  said  decedent '{ 

The  statutes  in  jelation  to  ttiis  subject  are  Laws  of 
18  Jo,  cliap.  115  ;  amended  by  Laws  o/'1874,  chap.  201, 
ai:d  Laws  ofl'Slo,  cliap.  38  ;  1  B.  8.  joart  II.,  chap.  1, 
tir.  1,  §§  8,  15,  16,  17;  Code  of  Cioil  Procedure,  §  2615. 

The  litle  of  the  act  of  1845  is  "an  act  to  enable 
resident  aliens  to  hold  and  convey  real  estate  and  for 
oiher  puiposes."  The  use  of  the  word  resident  in  the 
title  would  seem  to  exclude  any  intention  of  conferring 
rjtjy  rights  upon  non-resident  aliens.  See  section  4  of 
this  act  as  it  was  last  amended  in  1875  (ch.  38).  Non- 
resident aliens  are  not,  and  cannot  be,  heirs  of  a  resi- 
dent of  the  United  States.  An  alien  cannot  take  lands 
by  descent  nor  transmit  them  to  others  as  his  heirs. 
1  Washburn  on  Real  Property,  raarg.  p.  49,  §  23.  Every 
citizen  of  the  United  States  is  capable  of  holding  lands 
within  this  state  and  of  taking  the  same  by  descent 
devise  (jr  purchase.  1  11.  S.  part.  II.,  chap.  1,  tit.  1, 
§  8.  The  provision  as  to  declaration  of  intention,  &c., 
contained  in  section  15  (1  R.  S.,  part  II.,  chap.  1,  tit. 
1)  and  referred  to  in  section  1  of  the  act  of  1845,  applies 
only  {o  resident  aliens  ["  any  alien  who  has  come  or 
may  hereal'tei;  come  into  the  United  States"]  and  en- 
able.s  them  to  take  and  hold  only  after  such  declaia- 
tion,  &c.,  is  made.  7cZ.  ^  16.  "Such  alien  shall  not 
be  capable  of  taking  or  holding  any  lands  or  real 
estate  which  mn-y  \\Vi\e  descended  or  been  devised  or 
conveyed  to  him  previously  to  his  having  become  such 
resident  and  made  such  deposition  or  affirmation  as 
al'oi'esaid."  Id.%\l.  The  rule  of  descent  ccmtained  in 
1  R.  S.,  part.  II.,  chap.  2  must  be  limited  by  section  8, 
above  quoted,  as  to  persons  qualilied  to  take  by  descents 


328  CIVIL     PROCEDURE     REPORTJ^. 

In  re  Powers. 

"  The  following  persons  must  be  cited  upon  a  j^ti- 
tion  juvsented  ns  prescribed  in  the  last  section. 

"1.  If  the  will  relates  exclusively  toreul  propert}'-, 
the  husband,  if  any,  and  all  the  heirs  of  the  testator." 
Code  Cio.  Pro.  §  2615. 

The  will  here  relates  exclusively  to  real  estate.  As 
would  appear  from  the  statutes  and  decisions  above 
cited,  the  non  resident  alien  brother  and  sister  of  the 
deceased  are  not  heirs.  It  will  be  noticed  that  the 
Code  says  that  the  "heirs"  must  be  cited,  but  does 
not  say  "  persons  answering  the  description  of  heirs." 
The  statute  is  learnedly  considered  in  Hall  v.  Hall,  81 
iV.  X.  130  ;  Lull  rs  v.  Eimer,  80  iV".  T.  171 ;  and  Good- 
rich D,  Russell,  42  N.  Y.  85  ;  to  which  cases  I  would 
respectfully  call  the  court's  attention. 

Rollins,  S. — The  decedent,  who  at  the  time  of  his 
death  was  a  citizen  of  the  United  States,  owning  real 
estate  in  this  county,  died  here  in  July  last.  Among 
his  surviving  next  of  kin  are  a  sister  and  a  brother, 
both  non  resident  aliens.  A  paper  puri)orting  to  be 
his  last  will,  and  to  devise  to  his  wife  and  to  a  brother 
residing  in  the  United  States  certain  real  propert}^ 
having  been  offered  for  probate,  the  question  has 
arisen  as  to  the  necessity  of  issuing  citations  to  his 
alien  brother  and  sisler. 

Section  2615  of  the  Code  of  Civil  Piocedure  directs 
that  upon  an  application  for  the  i)robate  of  a  will 
affecting  real  estate,  all  the  "heirs"  of  the  testator 
must  be  cited.  Are  the  alien  brother  and  sister  of  this 
decedent  to  be  deemed  his  "heirs"  within  the  mean- 
ing of  this  section  ?  "An  heir,"  says  Blackstone,  "  is 
he  upon  vvh<»ni  the  law  casts  the  estate  immediately  on 
the  death  of  the  ancestor."  (2  Blacks.  Coimii.  chap. 
14,  p.  201.)  At  common  law  aliens  were  incapable  of 
taking  by  descent,  and  they  were  formerly  under  the 
hani(i  incapacity  in  the  state  of  New  York.  (2  KcnVs 
(Juniin.  53;  Lynch  c.  Clarke,  1  Sand.  Ch.  G04.)     This 


CIVIL    PROCEDUHE     REPORTS.  329 

In  re  Povvers. 

disability  was  removed  by  the  act  of  1845.  That  act 
(§  4,  cliap.  115,  Laws  of  1845,  as  amended  by  (diap. 
261,  Laws  of  1874,  and  by  chap.  :-J8,  Laws  o/ 1875  [3 
R.  S.  7rli  ed.  i^l70]),  recognizes  the  right  of  alien  kin 
of  a  person  deceased,  who  was  at  the  time  of  his  death 
a  resident  alien  or  a  citizen  of  the  United  States,  to 
take,  as  his  heirs,  the  lands  which  would  have  des- 
cended to  them  in  that  capacitj^  had  they  been  citizens 
of  the  United  States.  The  title  of  an  alien  male  of  full 
age  is  however  made  defeasible  by  the  state  upon  his 
fiiilure  to  file  an  affirmation  or  deposition  respecting 
his  intended  citizenship  in  manner  provided  by  section 
1  of  the  act.  That,  under  the  provisions  of  this  stat- 
ute, non-resident  aliens  can  take  by  descent  seems 
too  plain  to  be  doubted,  and  has  been  often  expressly 
asserted  by  our  courts.  (Goodrich  v.  Russell,  42  N.  Y. 
85  ;  Luhrs  v.  Eimer,  80  N.  Y.  Ill  ;  Hall  o.  "Hall,  81 

]s\  Y.  im) 

I  hold,  therefore,  that  this  decedent's  sister,  though 
a  non-resident  alien,  is  entitled,  if  he  shall  be  found 
to  have  died  intestate,  to  the  same  interest  in  his  real 
estate  that  she  could  take  were  she  a  citizen  of  the 
United  States,  and  that  his  alien  brother  is  entitled  to 
a  like  interest,  subject  to  be  defeated  by  the  state  and 
only  by  the  state,  in  case  he  should  neglect  to  make 
and  file  the  dej^osition  and  affirmation  that  the  statute 
requires. 

Both  the  brother  and  sister  must  therefore  be 
cited. 


Sao  CIVIL    PllOCEDURE     REPORTS. 


Hayes  v.  Davidson. 


HAYES,  As  Assignee,  &c.,  of  GRANT  for  benefit 

OF  Creditors,  Appellant,  v.  DAVIDSOiS', 

Sheriff  of  the  City  and  County 

OF  New  York,  Respondent. 

Supreme    Court,     Fii^t    Department,     General 
Term,  October,  1884.  • 

§531. 

Bill  of  particulars. —  When  oi'ihred  in  action  hy  assignee  against  sheriff 
for  conversion. 

In  an  action  by  an  assignee  for  the  benefit  of  crerlitors  apjainst  aeheriff 
for  taking  personal  pi operty  under  an  aUac^liment  against  the  as- 
signor, and  converting  it,  tlie  siierilT  is  not  entitled  to  a  bill  of  par- 
ticulars of  the  items  of  tlie  slock  of  goods  so  seized  and  converted, 
I',  *]  but  where  a  part  of  the  goods  were  returned  to  the  plaintiflE 
after  the  commencement  of  the  action  and  accepted  by  liim,  he 
should  be  required  to  furnish  a  bill  of  particulars  of  the  goods  so 
returned.  [*J  Brady,  J.  (dissenting.),  —  Held,  that  the  ])laintifr 
should  furnish  a  statement  in  writing  of  the  property  alleged  to 
have  been  carried  away  and  converted  by  the  defendant,  together 
with  a  statement  of  the  alleged  value  of  sueli  article,  piece  or  por- 
tion of  the  pro()erty  so  alleged  to  have  been  taken.  [•*,  *] 

{Decpled  October  7,  1884.) 

Appeal  from  an  order  requiring  the  plaintiff  to 
serve  on  tlie  defendant  a  bill  of  particulars. 

The  opinion  states  the  facts. 

Peter  Condon,  for  jjlaintiff,  appellant. 

W.  BourJce  Cockran,  for  defendant,  respondent. 

Davis,  P.  J. — Ordinarily  I  should  be  of  opinion 
that  a  sheriff  who  is  sued  for   taking  on  process  a 


CIVIL    FROeEDURE    REPORTS.  331 

Hayes  v.  David&on. 

Stock  of  goods  from  the  possession  of  an  assignee^ 
[':]    and  removing  them  from  his  possession  is  not  en- 
titled, when  sued  by  such  assignee,   to  demand  a. 
bill  of  particulars  of  the  items  of  the  stock  of  goods 
so  seized  and  taken.     Presumptively  his  possession  of 
them  would  be  held  sufficient  to  give  him  full  knowl- 
edge of  what  they  consist,  and  a  bettei   opportunity 
to  know  their  items  than  the  assignee  in  trust  from^ 
whom   they  have  been  taken.     In   this  case  a  part  of, 
the  stock  was  sold  by  the  sheriff,   and  another  part 
returned    by   consent    to    the  assignee.      Reasonable- 
diligence  w^ould  of  course  have  enabled  the  sheriff  to 
know  what  part  and  how  much  of  the  stock  was  sold, 
and  as  to  that  part  he  should  be  in  better  position  to 
know  the  particulars  than   the  assignee  can   be  pre- 
sumed  to  be.     But  as  to  the  items  returned  to  the 
assignee,  if  such  return  were  in  gross  of  a  remaining 
bulk,  the  assignee  w4io  received  them  ought  to  be  in 
better  position  to  know  the  items  than  the  sheriff. 
Upon  the  facts  appearing  in  the  affidavits  I  think  the 
order  ought  to  be  so  modified  as  to  limit  the  bill- 
[■"j     of  particulars  to  the  items  returned  to  the  plaint- 
iff, so  that  the  sheriff  may  be  relieved  from   the 
necessity  of  proving  those  items  as  part  of  his  defense 
and  his  liability  in  respect  thereof  be  limited  to  such 
damages  as  the   taking,   withholding  and  returning, 
with  acceptance  by  plaintiff  subject  him. 

With  this  modification  the  order  should  be  affirmed,   . 
without  cost  of  this  appeal  to  either  party. 

Daniels,  J. — [Concurring.] — I  am  convinced  that 
the  modified  directions  suggested  in  the  opinion  of 
the  x>i'esiding  justice  is  as  broad  as  the  facts  of  the 
case  will  justify.   There  would  be  neither  injustice  nor 

inconvenience  produced  by  an  entire  denial  of  the 
[*]     motion ;    for   the   sheriff  must   have  known    the 

goods,   and  of  what    they   consisted,    which  he 


3.32  CIVIL    PROCEDURE    REPORTS. 

Hayes  v.  Davidson. 

seizod,  and  also  those  which  were  sold  l)y  him,  uud 
excl!uliM;4;  Miem,  would  as  clearly  iudicale  the  articles 
retiiined.  But  as  the  phiinliff  lias  the  ability  to  I'lir- 
nish  a  statement  of  tlie  articles  reruriied,  and  ihai  will 
remove  all  possible  ground  for  misunderstanding  con- 
cerning the  subject  of  the  controversy,  he  may  well 
be  required  to  do  that.  And  to  such  a  direction  I 
therefore  agree. 

BitADY,  J. — [Dissenting.] — This  action  is  brought 
to  recover  damages  for  the  wrongful  conversion  by  the 
defendant  of  certain  personal  property  which  was  part 
of  the  estate  of  Duncan  A.  Grants  and  claimed  by  the 
plaintiff  as  the  substituted  assignee  of  Grant. 

The  taking  of  the  goods  is  admitted.  They  appear 
to  have  been  seized  by  the  defendant,  as  sheriff,  under 
certain  warrants  of  attachment  issued  against  Grant, 
u[)on  the  ground  that  he  had  assigned  and  disposed 
of  his  property  with  the  intent  to  defraud  his  credit- 
ors. Some  of  the  goods  seized  were  sold,  and  it  ap- 
pears that  about  three  weeks  after  the  commencement 
of  the  suit  for  the  conversion  of  the  stock  taken  from 
Grant  the  merchandise  which  was  not  disposed  of  was 
returned  by  the  sheriff  to  the  plaintiff  and  accepted 
by  him.  Upon  the  aj^plication  of  the  defendant  an 
order- was  made  directing  the  plaintiff  to  furnish  a 
statement  in  writing  of  the  goods,  chattels,  fixtures 
aud  other  personal  property  alleged  to  have  been  car- 
ried away  and  converted  by  the  defendant,  together 
with  a  statement  of  the  alleged  value  of  each  ar- 
[*]  tide,  piece  or  ])ortion  of  the  property  so  alleged 
to  have  been  taken,  and  that  in  default  of  such  an 
account  the  plaintiff  should  be  precluded  from  giving 
evidence  on  the  trial  of  the  alleged  conversion  of  the 
property  mentioned  in  the  complaint  or  the  value 
thereof. 

The  defendant  is  a  i)ublic  oflBcer,  and  the  conver- 


CIVIL    PROCEDURE    REPORTS.  333 


Andrews  v.  Snyder. 


sion  charged  against  him  was  an  act  which  he  was 
called  upon  to  perform  by  virtue  of  the  various"  war- 
rants of  attachment  issued.  The  allegation  in  the 
complaint  is  that  between  January  4th  1884,  and 
February  25th  following,  the  defendant,  as  sheriff, 
willfully  and  wrongfully  seized,  took  and  carried  away 
and  converted  to  his  own  use  certain  goods  and  mer- 
chandise, the  property  of  the  estate  of  Grant  and 
belonging  to  the  plaintiff  as  assignee.  But  this  is  too 
general  an  allegation  in  an  action  like  this,  and 
[°]  the  court  below  w^as  justified  in  directing  the 
order  which  was  made  in  the  exercise  of  its  dis- 
cretion, and  it  cannot  be  interferred  with  under  the 
circumstances  revealed  by  the  papers  submitted  on 
this  appeal. 

The  order  should  therefore  be  affirmed,  with  $10 
costs  and  the  disbursements  of  the  appeal. 


ANDREWS,  Respondent,  v.  SNYDER,  Appellant. 

County   Court  of  Onondaga  County,  November, 

1884. 

§§  3046,  3048. 
Appeal  from  justice's  court. — Mode  of  service  of  notice  of  appeal. 

Service  of  a  notice  of- appeal  from  a  judgment  rendered  in  a  justice's 
court  upon  ihe  attorney  wlio  appeared  for  tlie  respondent  in  tlie 
justice's  court,  is  of  no  avail  if  the  respondent  is  a  resident  of  the 
niunty  in  wliicli  the  judgment  was  recovered,  and  an  order  permit- 
ting tlic  appellant  to  so  serve  tlie  notice  of  appeal  would  be  of  no 
eflfect,  as  the  statute  prescribes  when  such  service  may  be  made 
and  an  order  could  not  enlarge  or  limit  tlie  scope  ot  the  statute. 

Where  a  notice  of  a])peal  from  a  juiigment  of  a  justice's  court  was 


'834  CIVIL    PR^CEDUH'E     REPORT. 

Andrews  v.   Snyder. 

duly  SL'ived  on  the  justice  and  the  fees  and  costs  paid  him,  iind  nri 
uiid' rtaking  to  stuy  execution  ^iven  and  ucopy  of  iho  notice  of  ap- 
peal served  on  the  r.^pondent's  attorney  who  served  notice  of 
appearance,  and  the  appellant  relying  upon  such  appearance  placi-d 
the  cause  on  (lie  cati-ndar,  noticed  it  for  trial,  and  upon,  its  tjiinj^ 
rcaclicd  on  tiie  day  calendar  took  a  dismissal  of  the  complaint  l>y 
'iiefiiult  and  entered  judgment  for  costs,  and  tlie  respondent  moved 
to  set  aside  the  nolice  of  appeal  and  nil  proceedings  sul)sequent 
thereto  on  the  ground  that  it  had  not  been  served  on  him,  and  it 
appeared  tlmt  he  was  at  the  time  of  the  appeal  and  had  been,  ever 
since,  a  resident  of  the  county  in  which  the  judgment  was  recovered, 
—Held,  that  such  motion  should  be  granted,  but  that  tiie  np[)ellant 
should  be  allowed  to  serve -his  notice  of  appe;il  upon  the  respondent, 
and  tiiat  costs  should  not  be  allowed  either  party. 
"^  {Decided  November  8,  1884.) 

Motion  by  respondent  for  an  order  setting  nside 
and  dismissing  the  appeal  lierein  ;  the  undertaking  on 
appeal;  an  order  permitting  service  of  the  notice  of 
appeal  on  the  respondent's  attorney  ;  the  order  of  this 
court  dismissing  liis  complaint  and  the  judgment 
entered  thereon. 

This  case  was  tried  before  a  justice  of  the  peace  of 
Onondaga  county  and  a  jury  on  May  2,  1884,  and 
judgment  rendered  for  the  plaintiff  and  ngainst.tlie 
defendant  for  8110  damages  and  $13.12  costs. 

On  May  8,  the  appelhint  gave  an  undertaking  and 
served  notice  of  appeal  on  the  justice,  and  paid  to 
him  the  cost  of  trial,  &c. 

On  May  22,  1884,  the  appellant,  not  being  able  to 
find  respondent  within  the  county  of  Onondaga,  pro- 
cured an  order  allowing  him  to  serve  the  notice  of  ap- 
peal on  the  attorney,  who  appeared  for  the  respondent 
on  the  trial  of  the  case  in  justice's  court, and  did  so  serve 
it.  Siibs(3quently  said  attorney  served  on  appellant's 
Httorneys  a  notice  of  motion  to  set  aside  the  appeal  on 
tlie  ground  that  the  service  of  the  notice  of  appeal  was 
irregular,  in  that  it  did  not  comply  with  section  3048 


CIVIL    PROCEDURE    REPORTS.  335 

Andrews  v.   Snj'der. 

of  the  Code  of  Civil  Procedure.  Thereafter  said  mo- 
tion was  withdrawn  and  notice  of  appearance  served 
on  appellant's  attorney  b}'  res[)ondent's  attorney.  The 
case  was  upon  the  calendar  of  the  court  several  terms 
following.  At  the  October  term  the  case  was  regularly 
noticed  for  trial,  placed  upon  day  calendar,  and,  thei-e 
being  no  appearance,  on  the  [)art  of  respondent  on  mo- 
tion of  appellant  the  com[)laint  was  dismissed  with 
costs  against  respondent  and  Judgment  was  duly 
entered  against  him  on  October  21,  1884,  for  $102.89. 

•Other  facts  are  stated  in  the  opinion. 

William  M.   Ross^    for   plaintiff-respondent    and 
motion. 

Chamherlain^  &  Ayers,  for  defendant-appellant, 
apposed. 

NoRTHRUP,  J.— Upon  the  papers  in  this  case  I 
must  hold  as  a  matter  of  fact  that  the  respond- 
ent was  at  the  time  of  the  appeal,  and  ever  since  has 
been  a  resident  of  Onondaga  county  ;  that  the  appell- 
ant's attorneys  seasonably  and  in  good  faith  served  the 
notice  of  api)eal  upon  the  Justice  but  omitted,  through 
mistake  as  to  the  facts,  to  serve  it  upon  the  respon- 
dent ;  that  the  attorney  who  appeared  for  the  respon- 
dent in  Justice's  court  has  appeared  in  this  court  for 
him,  acted  as  such  attorney  and  that  the  appellant's 
attorney  has  in  entire  good  faith  relied  upon  such 
appearance  in  this  action. 

It  is  unnecessary  to  determine  whether  the  notice 
of  appeal  was  personally  served  on  respondent's  attor- 
ney or  not,  as  such  service,  if  made  while  respondent 
was  a  resident  of  Onondaga  county,  would  have  been 
of  no  avail. 

I  must  hold  on  these  facts  that  the  appeal  has  not 
been  fully  perfected. 


330  CIVIL     PMOCEDLTHK     KnjrORTS. 


Ki'ui  V.  Popli:im. 


The  Older  permitting  personal  service  of  notice 
of  appeal  on  respondent's  attorney  in  justice's  court 
was  of  no  effect.  Tlie  statute  prescribes  when  such 
service  may  be  made,  and  an  order  could  not  enlarge 
or  limit  the  scope  of  this  statute. 

It  follows  that  the  order  permitting  service  of 
notice,  &c.  upon  the  attorney  who  appeared  for  the 
respondent  in  the  justice's  court  must  be  set  aside  ; 
that  the  order  dismissing  the  complaint  be  vacated 
and  that  the  judgment  against  the  respondent  be 
vacated  and  set  aside. 

Under  section  3049,  Code  of  Civil  Procedure  per- 
mission ought  to  be  and  is  given,  to  serve  U[)on  res- 
pondent the  notice  of  appeal  within  ten  days  or  if 
unable  to  do  so  to  serve  under  section  3048,  subd.  2. 

Upon  all  the  facts  this  does  not  seem  to  be  a  case 
where  costs  should  be  allowed  either  party. 


KENT,  Respondent  v.  POPHAM,  Appellant. 

Supreme    Couut,     First    Department,     General 
Term,  January,  1884. 

§§  1498,  1632. 

Action  to  foreclose  mortgage. — Proper  parties  to. 

A  pliiiiitifl  should  not  be  allowed  to  amend  his  complaint  on  the  trial 
<vf  the  iiclion  by  striking  out  all  the  allegations  referring  to  one  of 
the  defendants  so  as  virtually  to  dit.continue  tlio  action  as  to  hiui 
except  upon  the  payment  of  all  costs  in  tlie  action  whether  awarded 
to  him  on  appeal  from  a  former  judgment  or  otherwise,   ['j 

So  far  as  mere  legal  rights  are  concerned,  tlie  only  proper  parties  to  an 
action  for  the  foreclosure  of  a  mortgage  are  the  mortgagor  or  mort- 
gagee and  those  who  have  acquired  rights  under  them  subsequent 
to  the  mortgage;  [',  'J  and  one  who  claims  a  lien  on  the  mortgaged 


CiVIT,     PROCEDURE     REPORTS.  337 

Kent  V.  Pupliam. 

property  prior  to  the  mortgage  and  adverse  to  the  mortgagor  can- 
not l»e  m.ide  a  party  for  the  purpose  of  trying  the  validity  of  his 
claim.   [',  *J 

Wliere  in  an  action  to  foreclose  a  mortgage  a  judgment  creditor  of 
the  grantor  of  the  mortgagor,  was  made  a  party,  for  tlie  purpose  of 
having  tiie  judgment  declared  subsequent  and  subuVdinated  to  the 
mortgage,  and  tlie  judgment  creditor  claimed  that  his  judgment 
■was  a  lien  on  the  niortgagid  premises  superior  to  the  mortgage, — 
Held,  that  he  could  not  l)e  made  a  party  to  the  action  for  that  pur- 
pose ;  [',  *j  that  a»  amendment  of  tlie  connplaint  which  struck  out 
the  allegations  referring  to  Iiira  and  his  judgment  and  in  effect  dis- 
missed the  action  as  to  him  could  not  be  allowed  except  u[)on  paj'- 
ment  of  all  costs,  [']  and  could  not  in  auy  ni  uner  affect  his  rights 
because  it  left  his  lien  existing  against  the  property  whatsoever  it 
miglit  be  and  subject  to  the  euforccment  of  which  the  purchaser 
must  take  the  property.   [*j 

{Decided,  March,  1884.) 

Appeal  from  an  order  amending  the  complaint 
herein  and  from  the  judgment  thereafter  entered. 

S.  J.  &  F.  II.  Oowdrey^  for  defendant-appellant. 

JS.  H.  Benn^  for  plaintiff-respondent. 

Brady,  J. — This  action  was  brought  ostensibly  to 
foreclose  a  mortgage  made  by  Henry  C.  Btirretto  to 
the  plaintiff,  to  secure  the  bond  executed  by  Frank  J. 
Barretto  and  him.self.  The  c()mi)htint,  in  addition  to 
the  allegations  in  reference  to  a  foreclosure  of  the 
mortgage,  alleges  as  follows  : 

"And  this  plaintiff  further  shows  that  the  defend- 
ant, Francis  J,  Barretto,  was,  on  or  about  the  1st  day 
of  August,  1872,  seized  in  fee  simply  of  an  undivided 
one-tenth  of  certain  lands  at  Barretto's  Point  (then 
Westchester  count^v)  now  City  of  New  York,  of  which 
the  lands  covered  hj  the  mortgage  hereinabove  des- 
cribed constituted  a  portion  ;  that  on  said  1st  day  of 
August,  1872,  said  Francis  J.  Barretto  conveyed  to 
Henry  C.  Barretto  his  said  undivided  interest  in  said 
Vol.  VI.— 23 


nns  CIVIL    PROCEDURE    REPORTS. 

Kf  ut  V.  Popliam. 

lands,  bj'^  an  instrument  in  writing,  under  seal,  bearing 
date,  duly  executed  and  delivered  on  said  1st  day  of 
August,  1872  ;  I  hat  said  conveyance  was  made  for 
and  in  consideration  of  the  indorsement  by  said 
Henry  C.  Barretto  of  a  certain  promissory  note  for 
$2.'),()00  made  by  said  Francis  J.  Barretto,  dated  on  or 
about  August  2,  1872,  and  then  delivered  to  plaintiff, 
and  to  secure  the  said  Henry  against  the  payment  of 
the  same  ;  that  relying  upon  the  said  note  and  in- 
dorsement and  the  said  conveyance  to  said  Henry,  the 
plaintiff  did  \ydy.  lay  out  and  expend  for,  and  loan 
and  advance  to  the  said  Francis  J.  Barretto  at  various 
times  thereafter,  during  ihe  year  1872.  large  sums  of 
money,  which  amouufel  over  and  above  all  pay- 
ments and  offsets  to  $13,000;  that  thereafter  and 
actual  partition  of  said  lands  was  had,  and  the 
lands  covered  by  the  mortgage  mentioned  and 
described  herein  were  duly  set  apart  and  then  con- 
veyed to  Henry  C.  Barretto,  in  right  of  the  said 
Francis  J.  Barretto,  and  in  confirmation  of  the  con- 
veyance of  August  1,  1872,  whereupon  the  moitgnge 
mentioned  herein  was  given  by  the  said  Henry  C 
Barretto  to  secure  the  moneys  so  loaned  and  ad- 
vanced, and  paid  out  by  plaintiff  to  the  defendant, 
Francis  J.  Barretto,  which  moneys  still  remain  unpaid, 
and  in  pursuance  of  the  agreements  and  covenants 
of  the  said  parties  ;  tliat  the  conveyance  from  Fran- 
cis J.  Barretto,  although  deiivernd  on  or  about  xiugust 
2,  1872,  was  not  recorded  until  October  2:>,  1873,  in 
the  afternoon,  in  Westchester  county  register's  office, 
liber  857  of  Conveyances,  [)agH  114,  and  a  certain  judg- 
ment obtained  in  the  New  York  supreme  court,  by 
defendant  William  H.  Popham  against  the  defendant 
Fiancis  J.  Barretto,  for  811,550.47,  was  docketed  in 
the  clerk's  office  of  said  county,  on  said  October  23, 
1878,  in  the  forenoon. 

"And  plaintiff  alleges  that,  by  reason  of  the  facts 


.^TTIL    PKOCEBURE    REPORTS.  339 

Kent  V.  Popliam. 

kereinubove  &et  forth,  the  lien  of  the  said  jndgruent 
\vas  subsequent  and  subordinate  to  the  lien  of  the  said 
conveyimoe  from  Frank  J.  Barretto  to  Henry  C.  Bar- 
retto,  and  to  plaintiff's  mortgage,  and  may  be  so 
declared  -and  decreed."  And  in  connection  with  these 
allegations  the  following  prayer  for  relief:  "That  the 
lien  of  the  said  judgment  obtained  by  the  defendant, 
Popham,  may  be  declared  to  be  subsequent  and  sub- 
ordinate to  the  lien  of  the  plaintiff's  mortgage."  The 
answer  of  the  defendant  Popham's  testators  contro- 
verted the  material  statements  of  the  complaint  and 
alleged  fraud  in  the  pretended  conveyance  from  Fran- 
cis J.  Barretto  to  Henry  C,  Barretto  and  the  complic- 
ity of  the  plaintiff  therein  ;  denied  the  delivery  of 
the  conveyance  i)rior  to  the  docketing  of  his  judg- 
nient ;  claimed  priority  of  lien ;  set  up  his  adverse 
title  ;  and  claimed  the  benefit  ot  his  allegations  as 
though  he  had  demurred. 

It  appears  that  after  the.opening  of  the  case  at  the 
trial  a  motion  was  made  on  behalf  of  the  defendant 
Mrs.  Popham — the  action  having  been  continued 
Against  her  as  executrix  of  William  H.  Popham  her 
husband  and  the  judgment  creditor — to  dismiss  the 
complaint  as  against  her ;  which  was  denied  and  an 
exception  duly  taken.  It  api^ars  that  this  motion 
was  renewed  after  the  plaintiff  rested,  and  was  again 
-denied  and  an  exception  taken.  It  also  appears  that 
during  the  trial  and  after  the  plaintiff  had  introduced 
*?vidence  ol"  the  deed,  bond  and  mortgage,  a  motion 
was  made  by  the  plaintilf  to  amend  the  comphiint. 
The  motion  was  opposed,  but  the  order  was  granted 
>and  an  exception  taken.  This  is  the  third  appeal  in 
-this  case.  On  a  former  appeal  the  jtidgment  was  re- 
versed and  a  new  trial  awarded  with  costs  to  the 
-appellant  to  abide  the  event.  Subsequently  an  order 
■  was  made  granting  leave  to  tlie  plaintiff  to  make  the 


340  CIVIL    PROCEDURE    REPORTS. 

Kent  r>.  PiJphnm. 

amendments  which  were  allowed   upon  the  trial,  and 
the  order  np  pealed  from  was  reversed. 

The  questions  presented  upcn  this  appeal  arise 
first  upon  the  propriety  of  permitting  the  amendments 
to  be  made  on  the  terms  that  were  imposed,  and 
secondly  the  judgment  itself  against  the  defendant 
Popham.  The  amendments  allowed  changed  the  entire 
character  of  the  action  by  striking  out  the  allegations 
cited  and  part  of  the  prayer  lor  relief,  also  cited  and 
converted  it  into  one  of  foreclosure  only,  resting  upon 
the  judgment  and  not  seeking  by  any  allegations  in 
the  complaint  to  settle  the  status  in  reference  to  the 
priority  of  the  judgment,  which  was  referred  to  in  the 
allegations  of  the  complaint  stricken  our.  And  that 
such  was  the  design  of  the  amendments  is  clear  from 
the  fact  that  the  prayer  in  regard  to  the  judgnjent  was 
also  stricken  out  as  part  of  the  con^plaint.  The  char- 
acter of  the  action  having  been  thus  changed  and  all 
the  allegations   stricken   out   making    the   defendant 

Popham  a  party  and  presenting  issues  as  to  him, 
[']    it  was  virtually  a  discontinuance  of  the  action  as 

to  him,  and  should  not  have  been  allowed  except 
upon  the  payment  of  all  the  costs  in  the  action, 
whether  awarded  to  him  on  api)eal  or  otherwise. 
There  does  not  seem  to  be  the  slightest  doubt  about 
the  propriety  of  this  result  and  of  our  conclusions  ar- 
rived at  on  this  ap])eal,  that  the  judgment  against  the 
defendant  Popham  should  be  reversed. 

It  is  settled   that  the  imly  prf)per  |>arties  to  a 
["]     bill  of  fore(-losiire  so  far  as  mere  legal  rights  are 

concerned,  are  the  mortgagor  or  mortgagee  and 
those  wht)  have  acquired  rights  under  them  subsequent 
to  the  mortgage.  And  this  rule  is  founded  upon  the 
statute  (Etnigrant  Industrial  Savings  Bank  v.  Gold 
man,  75  N.  Y.  127).  It  was  said  in  that  case  :  "The 
plaintiff  may  make  prior  incumbrancers  parties,  for 
the  purpose  of  having  the  amount  ascertained  and 


CIVIL     PROCEDURE    REPORTS.  341 

Kent  V.  Popham. 

paid  out  of  tlie  proceeds."  But,  as  said  in  tliat  case 
and  to  be  said  in  this,  no  such  purpose  was  indicated 
by  the  complaint.  On  the  trial  the  allegations  pre- 
sented a  contest  as  to  whether  the  judgment  mentioned 
was  a  prior  lien  to  the  mortgnge. 

In  Corning  v.  Smith  (6  iV.  Y.  82),  it  was  held 
[']     by  the  court  of  appeals    that  where   one  claims 

adversely  to  the  title  of  the  mortgagor  and  prior 
to  the  mortgage,  he  cannot  be  made  a  party  defend- 
ant in  a  bill  to  foreclose  a  mortgage^for  the  purpose  of 
trying  the  validity  of  such  claim.  And  in  Eagle  Fiie 
Ins.  Co.  ».  Lent  (6  Paige,  63o)  the  chancellor  declared 
the  rule  emjihatically  to  be,  that  so  far  as  mere  legal 

rights  were  concerned  upon  a  bill  of  foreclosure, 
{*]     the    only    pi'()[)er    parties    to    the    suit    are    the 

mortgagor  and  mortgagee  and  those  who  have 
acquired  rights  and  interest  under  them  subsequent  to 
the  mortgage  ;  and  further  that  the  mortgagee  had 
no  right  to  make  one  who  claimed  adversely  to  the 
title  of  the  mortgagor  and  prior  to  the  mortgage,  a 
party  defendant  for  the  purpose  of  trying  the  validity 
of  his  adverse  claim  of  title  in  this  court.  See  also 
Frost  V.  Koon  (30  N.  Y.  428),  in  which  these  cases 
have  been  referred  to,  commented  upon  and  sustained. 
It  was  doubtless  the  knowledge  of  this  lule  which 
induced    the    appellant''s    counsel   to  apply   for    the 

amendment  which  was  granted  upon  the  trial, 
{;']     and  by  which  his  action  was  converted  into  one 

of  simple  foreclosure.  The  defendant's  rights 
could  not  be  affected  in  any  way  by  the  amendment 
having  been  allowed,  because  that  left  his  lien  exist- 
ing against  the  property  whatsoever  it  may  be  and 
subject  to  the  enforcement  of  which  the  purchaser 
must  take  the  property.  In  proceedings  to  collect 
the  judgment  its  i)rioritj'  could  be  determined,  if  any 
issue  were  taken  on  that  subject. 

For  these  reasons  the  order  allowing   the  amend- 


342  CIVIL  '  PROCEDURE    REPORTS: 

In  re  Bbynton^  &c.  "Co. 

menr  sIk  uld  be  modified  so  as  to  require  the  i)aymenfc 
of  all  the  costs  in  the  action  to  the  defendant  Popham, 
either  given  to  her  or  to  her  testator  to  abide  the  event, 
or  which  occurred  in  the  ordinarj'^  way,  and  the  judg- 
ment should  be  so  raodilied  as  to  make  it  appear  dis- 
tinct.y  that  no  rights  of  the  defendant  Popham  are 
affected  exce-pt  as  a  subsequent  incumbrancer,  for 
which  purpose  she  was  a  proper  jiarty.  No  costs  of 
this  appeal  to  either  party. 

Daniels,  J.,  concurred. 

Davis,  ?.  J.  [Concurring.]^ — I  concur  except  as  to^ 
the  costs  of  this  appeal.  I  see  no  reason  why  this, 
should  not  be  granted.  The  action  of  the  plaintiff, 
below  has  compelled  the  executrix  to  take  this  appeal/ 
"Why  should  the  estate  bear  its  expenses! 


In  ke  the  E.  M.  BOYNTON  SAW  &  FILE  COM- 
PANY. 

Supreme   Court,    SEcaNo  Department,    General 
Termj  Septemb*:r,  1884. 

§§  1810,  2419  et  seq. 

Volimf'Ory  disnolution  cf  corporaition.- — Power  of  court  in  proceed ings  for^ 

— AppoiHimenl  oj  receicer. — Conlenta  of  rejjoi't  of  referee. — 

Dee'iSiion  of  court. 

A  Mrneccding  for  the  voluntnry  dissolution  of  a  corporation  is  a  purely 
statutory  one  in. which  the  court  has  no  power  or  authority  to  net, 
except  ns  such  power  is  conferred  by  statute.  ['] 

A  receiver  cannot  be  ajipointed  in  a  proceeding  for  the  voluntary  dis- 
solution of  a  corporation  until  the  graiUiug.  ol.th«  tiaal  order  di» 
solving  th«  corpuraliun.  ^*y''\ 


CIVIL    PROCEDiTllE     REPORTS.  3-43 


III  re  IJi'Vnlon,  »fcc.  Co. 


Where  in  a  pi-i>cee^infr  f'"'  tl>e  voluntary  dissolution  of  a  corponition 
on  the  return  ol  ctic  oiaer  to  sliow  cause  wliy  it  slioiild  not  he  dij- 
Bolved,  a  referee  was  appointed  by  the  court  "  to  take  proof  of  tlic 
insolvi-ncy  of  tlie  corpoiatiOu  and  of  all  maiters  relating  tiiereto." 
— Held,  that  the  fourt  liad  |)owerto  do  so,  but  thiit  tlie  report  of  tlie 
referee  or  deciolon  of  the  court  must  contain  a  statement  of  the 
c'lrcct.s.  credits  and  other  property,  and  of  thedebis  and  oilier  cngaife- 
nients  of  tlie  corporation  and  of  all  matters  pertaining  to  its 
aff  .iis,  ["I  and  tliat  where  neither  the  report  nor  the  decision  of  tlje 
court  contained  such  a  statement  tlie  linai  order  was  void  and  must 

.  he  reversed  and  the  j)roceediiigs  remitted  to  the  special  term  to 
proceed  anew  on  the  refi-ree's  report.  [*] 

In  re  Eagle  Iron  Works  (S  Paige,  385);  f^]  In  re  Pyrolusite  Manganese 
Co.  (:J  iV.  Y.  Civ.  Pro.  270),  ['J  followed. 

(Decided  December  9,  1884.) 

Appeal  from  an  order  dissolving  the  corporation 
respondent;  appointing  a  permanent  receiver  of  its 
property  and  denying  a  motion  to  vacate  order  appoint- 
ing a  temporary  receiver.    . 

On  October  29,  1883,  on  a  petition  of  a  mnjority  of 
the  trustees  of  the  E.  M.  Boynton  Saw  and  File  Com- 
])nny  asking  for  its  dissolution  or  the  ground  that  it 
was  insohent  a.nd  that  such  course  was  beneiicial  to 
the  interests  of  its  stockholders,  and  on  affidavits  two 
orders  to  show  cause  were  granted  herein  ;  one  why 
the  (;orporation  should  not  be  dissolved,  and  the  oiher 
why  a  receiver  should  not  be  appointed,  to  preserve 
its  property,  pending  a  linal  order  for  its  dissolution 
and  a  distribution  of  its  assets. 

On  Xovetnber  2,  1883,  the  papers  having  been  duly 
served  on  the  attorney  general,  an  order  was  entered 
ai)i)ointing  Wallace  P.  Groom  as  such  receiver,  to 
take,  keep  and  preserve  the  property  of  the  coipora- 
tion. 

On  November  5,  1883,  the  receiver's  bond  was 
approved  and  filed,  and  he  entered  upon  the  discharge 
of  his  duties.     Subsequent  to  this  date,  the  National 


344  CIVIL    PROCEDURE     REPORTS. 

In  re  Boynton,  &c.  Co. 

Ciry  B.ink  of  New  York,  Chailes  E.  Bishop  and  the 
Wuterbury  M'fg  Co.,  obtained  judgments  against 
the  company  and  issued  executions  therein  to  the 
sheriiT  under  which  formal  levies  were  made  on  the 
property  of  the  company. 

Thereafter  motions  to  set  aside  the  order  appoint- 
ing the  temporary  receiver  were  made,  and  at  the  con- 
clusion of  the  argument  a  reference  was  ordered  "to 
take  proof  of  the  insolvency  of  the  corixH'ation  and  all 
matters  relating  thereto."  Thereafter  the  referee's 
report  was  tiled,  and  the  order  appealed  from  made. 
Further  facts  are  set  out  in  the  o])inion. 

JoKih  B.  Whiting  {Gibson,,  Whiting  d;  ParMn,, 
attorneys),  for  the  National  City  Bank  of  New  York, 
appellant. 

The  order  appointing  the  temporary  receiver  is 
void  and  should  be  vacated  because  the  court  had  no 
power  to  make  such  an  order.  If  there  is  ix)wer  in 
the  court  to  appoint  a  temporary  receiver  in  proceed- 
ings for  voluntary  dissolution,  it  must  arise  from  some 
new  provision  of  the  Code  of  Civil  Proceedure  ;  there 
was  no  such  power  under  the  revised  statutes.  Cham- 
berlain V.  Rochester  S.  P.  V.  Co.,  7  Hun^  557.  A 
creditor  who  obtains  a  levy  under  an  execution  on  the 
personal  property  of  the  corporation  after  the  petition 
for  voluntary  dissolution  is  filed,  but  before  the  final 
hearing  has  a  valid  lien  and  onethatmust  be  respected 
by  the  permanent  receiver.  Matter  of  Waterbury,  8 
Fairje,  380  ;  Matter  of  French  M'f*g  Co.,  12  ILm,  488. 
.  .  .  .  The  court  has  no  power  to  appoint  tem[M)rary 
receivers  in  these  proceeding.  Matter  of  Open  Board 
of  Brokers,  *3  N.  Y.  ^lonthly  Law  Bulletin,  57  ;  Smith 
V.  Danzig,  3  N.  Y.  Cin.  Pro.  127 This  proceed- 
ing is  strictly  statutory  and  must  conform  to  the  re- 
quirements of  the  statute.  Sharp  v.  Speir,  4  Uilly  76; 
Mutter  of  ll.jfT,  72  i\'    Y.  184. 


CIVIL     PROCEDURE     REPORTS.  345 

III  re  Boynton,  &c.  Co. 

Charles  E.  Chase,  for  F.  W.  Gade,  a  stockholder, 
api)elkint. 

The  court,  had  no  jurisdiction  to  make  an  order  of 
dissohuion  because  the  petition  and  scliedules  do  not 
comply  with  the  requirements  ol"  section  2421.  There 
must  be  a  strict  compliance  with  all  the  statutory  re- 
quirements to  give  jurisdiction.  In  re  Pyrolusite 
Manganese  Co.,  'd  N.  Y.  Civ.  Pro.  210  \  Chamberlain 
V.    Rochester   S.   P.  Y.   Co.,    7  Hun,  5o7 ;    Matter  of 

Westchester  Iron  Co.,  15  Hoio.  Pr.    7 The 

order  appointing   the  temporary  receiver   was   made 

without  jurisdiction No   receiver  Can   be   ap- 

X^oinied  except  under  sections  2429,  and  1810.  The 
former  section  confers  authority  of  appointment  only 
n[)on  dissolution  of  the  corporation.  The  latter  is  not 
a  source  of  power  of  appointment  but  simply  limits 
the  power  of  appointment  in  proceedings  for  dissolu- 
tion to  the  court.     Matter  of  Open  Board  of  Brokers, 

3  JV.  Y.  Monthly  Law  Bui.  57 This  is  not  a 

case  in  which  a  temporary  receiver  maj'-  be  ap- 
pointed. Chamberlain  n.  Rochester  S.  P.  Y.  Co.,  7 
Bun,  557 ;  Matter  of  Edson,  1  iV.  Y.  Monthly  Law 
Bui.  51. 

Charles  II.  Lusconib,  for  receiver  and  trustees, 
resxjondents. 

As  to  power  of  court  to  appoint  temi>orary  receiver, 
cited  Code  of  Civil  Procedui'e,  §  1810,  subd.  4; 
U.  S.  Trust  Co.  V.  N.  Y.  \V.  S.  &  B.  R.  R.  Co.,  6  N.  Y. 
Cic.  Pro.  90  ;  Attorney  General  v.  Continental  Life 
Ins.  Co.,  28  Hun,  360. 

Brown,  J. — This  a  purely  statutory  procee^.- 
[']     ing,  and  the  court  has  no  power  or  authority  to 
act,  except  as  such   power  is   conferred   by   the 
statute.     The  authority  for  the  appointment  of  a  re- 
ceiver is  given  by  section  2429  of   the  Codn-  and  this 


346  CIVIL    PROCEDURE    REPORTS. 

In  re  Boy ii ton,  &c.  Co. 

can  only  be  exercised  upon  granting  the  linal  order 
dissolving  the  corporation.     There  was   no  power  in 

the  court  therefore  to  ap[)oint  a  temporary  re- 
[']     ceiver,   and  the    order  of  November  2,  1883,  waa 

void.  This  view  of  the  statute  is  in  harmony  with 
the  decision  of  the  courts.  (Matter  of  French  M'f'g 
Co.,  12  lliiit,  488;  Chamberhiin  v.  Rochester  S.  P.  V. 
Co.,  7  Id.  557  ;  In  re  Open  Board  of  Brokers,  3  N.  Y. 
Mordhly  Law  Bid.  57.) 

The   statute   does   not  give  the  court  control 
['j     over  the  corporate  property  until  the  decision  is 

made  upon  the  return  of  the  order  to  show  cause. 
If  such  control  had  been  given  there  would  doubtless 
be,  as  an  incident  to  such  control,  authority  of  restrain 
creditors  from  suing  tlie  comi)any  and  to  i)revent  any 
interference  by  creditors  with  the  corporate  assets. 
(Phoenix  Foundry  Co.  v.  N.  R.  Cons.  Co.,  4tli  Dept., 
0  N.  Y.  Clo.  Pro.  160.) 

But  in   the  case  of   the  Eagle  Iron  Works  (8 
[']     Paige.,  385),  the  chaticellor  held  that  an  injunction 

would  not  be  granted  in  such  a  proceeding  as  the 
ofje  we  are  considering,  and  said:  "The  statute  has 
not  given  to  the  court  any  control  over  the  property 
until  the  comilig  in  of  the  master's  report  and  the  dis- 
solution of  the  cori)oration."  He  pointed  out  the  dif- 
ference between  a  proceeding  for  a  voluntary  dissolu- 
tion of  the  corporation,  and  i)roceedings  against  cor- 
porations in  equity,  and  held  that  in  the  former  case 
creditors  who  by  their  diligence  obtained  a  lien  upon 
the  coi'porate  i)roi*erty  could  not  be  deprived  of  the 
preference  they  had  acquired  ;  while  in  the  latter  case 
the  court  might  interfere  by  injunction  to  restrain  the 
creditors'  proceedings. 

1  think,   therefore,   the   order  appointing  the 
[']     temporary  receiver  was  void,  and  should  have 

been  vacated. 


CIVIL    PROCEDURE    REPORTS.  347 

In  re  Bnynton,  &c.  Co. 

Another  point  is  made  b}'  the  appellant  which  I 
think  is  fatal  to  the  proceedings.  Upon  the  hearing 
upon  the  order  to  show  cause,  the  court  referred  the 
matter  to  a  referee  "to  take  proof  of  the  insolvency 
of  the  corporation  and  all  matters  relating  thereto." 
This  the  court  had  joower  to  do,  and  the  Code  pro- 
vides, section  2426,  that  the  rejjort  of  the  referee 
["]  or  decision  of  the  court  "  must  contain  a  state- 
ment of  the  effects,  credits  and  other  property, 
and  of  the  debts  and  other  engagements  of  the  corpor- 
ation and  of  other  matters  pertaining  to  its  affairs." 
The  referee  returned  the  testimony  to  the  court,  but 
made  no  report  upon  any  of  the  matters  mentioned  in 
the  statute,  and  there  does  not  appear  in  the  appeal 
papers  to  have  been  any  decision  of  the  court,  except 
that  contained  in  the  linal  order.  This,  however, 
makes  no  mention  of  the  matters  required  by  the 
statute. 

In  the  case  of  the  Pyrolusite  Manganese  Cora- 
n  Paiiy  (3iV^.  Y.  Civ.  Pro.  270),  for  a  voluntary  dis- 
solution, a  similar  defect  was  held  to  be  fatal  to 
the  i)roceeding.  The  requirement  of  the  Code  was 
one  of  substance  and  not  of  foim,  and  a  failure  to 
comply  with  it  renders  the  final  order  void. 

The  order  appealed  from    must   therefore  ba 
[']     reversed  with  costs,  and  the  proceedings  remitted 
to  the  special  term  to  proceed  anew  upon  the  re- 
feree's report  in  the  manner  required  by  the  statute. 

Barnakd  and  Dykman,  JJ.,  concurred. 


348  CIVIL    PROCEDURE    REPORTS. 

Heenaii  v.  New  York,  «&c.  R.  K.  Co. 


HEENAN  V.  THE  NEW  YORK,  AVEST  SHORE  & 
BUFFALO  RAILROAD  COMPANY. 

County  Court  of  Albany  County,  Dece31Bek,  1884. 

§§  341,  488,  499. 

Count ij  Courts. — Jurisdiction  of,  of  actions  against  domestic  corporations. 

—  Objection  to,  how  rained. — Instance  of  case  in  which  want  of 

jurisdiction  did  not  appear  on  face  of  compAaint, 

The  general  rule  tluit  for  the  purpose  of  ascertaining  the  place  of 
veuue  of  an  action  against  a  railroad  corporation  any  county  in 
which  it  operates  its  road,  mny  be  regarded  as  its  residence,  dqps 
not  apply  to  county  courts;  [',*]  but  in  them  for  the  purpose  of 
determining  their  jurisdiction  a  domestic  corporation,  or  joint 
stock  association,  whose  principal  place  of  business  is  within  the 
county  is  deemed  a  resident  thereof.['j 

A  county  court  has  not  jurisdiction  of  an  action  against  a  domestic 
corporation  unless  its  principal  office  is  located  wiiliin  tlie  county 
and  personal  service  of  the  summons  is  made  within  tiie  county 
upon  one  of  tliose  officers  of  it  whom  the  Code  of  Civil  Procedure 
provides  may  be  served  with    a  summons  in    aii  action    against 

Where  the  fact  that  a  county  court  had  not  jurisdiction  of  a  defend- 
ant does  not  appear  on  the  face  of  the  complaint,  he  does  not 
waive  the  objection  by  appearing  generally  and  serving  an  answer, 
pleading  among  other  defenses  tiie  want  of  jurisdictiim  ;[*)  untlei 
the  Code  a  defendant  may  plead  as  many  defenses  as  he  has,  whether, 
as  formerly  denominated,  to  the  jurisdiction,  in  abatement  or  iti 
bar.['J 

Where  the  complaint  in  an  action  in  the  county  court  of  Albany  • 
county  against  a  domestic  railway  corporation,  alleged  that  tiie  \ 
defendant  was  a  domestic  corporation  engaged  in  the  business  of 
carrying  freight  and  passengers  for  hire  in  various  parts  of  tiie  State 
including  the  county  of  Albany  and  tliat  a  part  of  the  line  of  its 
road  was  located  in  that  county, — Held,  that  tlie  allegations  of  the 
complaint  as  to  residence  wore  sufficient, [*J  and  the  defendant  could 
not  demur  thereto, [']  and  did  not  waive  its  objections  to  the  juris- 
diction by  appearing  generally  and  serving  an  ansvyer  averring  that 


CIVIL    PKOCEDURE     REPORTS.  349 

Heenan  v.  New  York,  &c.  R.  R.  Co. 

its  jirincipiil  place  of  Imsiness  wiis  in  the  city  of  New  York  and 
never  was  established  or  located  in  the  county  of  Albany,  and  that 
the  summons  was  served  upon  it  in  the  city  of  New.York;  [*,*J  that 
sucli  allegations  of  the  answer  being  true  the  court  had  not  juris- 
diction of  the  defendant,  f*] 
{Decided  December,  1884.) 

Motion  by  defendant  for  a  new  trial  and  that  the 
complaint  be  dismissed. 

The  opinion  states  the  facts. 

27'a  K.  Place,  for  defendant  and  motion. 

B.  R.  Heyward,  for  plaintiff,  opposed. 

I^OTT,  County  Judge. — This  is  an  action  to  recover 
damages  for  injury  to  personal  property  caused  by  de- 
fendant's negligence  in  operating  its  railroad  through 
the  village  of  West  Troy,  in  this  county.  The  case 
was  tried  and  submitted  to  the  jury,  which  rendered  a 
verdict  for  the  plaintiff.  The  defendant  now  moves 
for  a  new  trial,  and  that  the  complaint  herein  be  dis- 
missed. Two  questions  are  presented  for  the  consid- 
eration of  the  court — first,  whether  this  court  has 
such  jurisdiction  as  to  entertain  the  action  ;  and  second, 
it'  it  has  not,  has  the  defendant  waived,  or  is  it  con- 
cluded from  raising  the  point.  The  complaint  alleges 
that  the  defendant  is  a  domestic  corporation  under  our 
laws,  and  is  engaged  in  the  business  of  carrying  freight 
and  [)assengers  for  hire  in  various  parts  of  the  State, 
iiicludJMg  the  county  of  Albany,  and  that  a  part  of  its 
line  of  road  is  located  in  this  count}'.  The  answer  of 
the  defendant  admits  that  it  is  a  domestic  corporation, 
and  avens  that  its  principal  place  of  business  is  and 
was  at  and  long  before  the  commencement  of  this 
action  established  by  its  articles  of  association  and 
actuallj^  located  in  the  city  of  New  York;  that  its 
principal  place  of  business  never  was  established  or 


3W>  CIVIL    PROCEDURE    REPORTS. 


Ilt'ctijiii  V.  New  York,  (fee.  It.  It.  Co. 


^x'lited  in  tliti  count}'  of  Albany,  and  that  the  sum- 
mons was  served  iii)on  defendant  in  the  city  of  New 
York.  It  also  puts  in  issue  the  various  a]le<^ations  in 
the  coin[)laint.  On  the  trial  it  was  established  that 
t'.ie  defendant,  being  a  railroad  corporation,  operated 
its  road  throngh  various  counties  of  this  State,  inclnd- 
ing  Albany  county,  and  that  by  the  articles  of  associa- 
tion, and  in  fact,  its  principal  place  of  business  i-s 
and  was  located  in  the  <nty  of  New  York,  and  that  ihe 
sunwnons  herein  was  served  upon  one  of  the  officeis  of 
the  defendant  in  the  city  of  New  Y^ork. 

Corporations  created  under  the  laws  of  this 
[']  Srate  are  residents  of  the  State,  and  an  examina- 
tion of  the  adjudications  of  our  courts  will  show, 
that  their  residen<;e  may  be  localized  into  one  county 
or  exist  in  many  counties  at  the  same  time.  For  the 
purpose  of  ascertaining  the  jilaceof  venue  in  an  action 
in  the  supreme  court  against  a  railroad  company,  any 
county  in  which  it  ojierates  its  road  may  be  regarded  as 
its  residence  (Pond  v.  H.  R.  R.  Co.,  17  Hold.  Pr.  543). 
So  with  reference  to  an  action  in  the  justices'  court 
(B(?lden  ?).  N.  Y.  &  H.  R.  R.  R.  Co.,  15  How.  Pr.  17; 
.Sherwood  «.  S.  &  W.  R.  R.  Co.,  16  Barb.  652).  So 
with  regard  to  highway  labor  (People  ex  rel.  H.  R. 
R.  R.  Co.  «.  Pierce,  31  Barb.  138).  So  for  the  pur- 
poses of  taxation  (People  v.  Fredericks,  48  Barb.  173 ; 
S.  C.  aff'd,  48  N.  Y.  70).  If  there  was  no  special  provis- 
ion in  regard  to  the  county  court,  these  autho:]ties 
would  control  us  and  we  should  hold  the  action  could 
be  maintained  against  the  defendant  in  this  county. 

The  Code  of  Civil  Procedure  provides  that  for 
[*]  the  purpose  of  determining  the  jurisdiction  of  the 
county  court,  a  domestic  corjioration  or  joint  stock 
association  whose  principal  i)lace  of  business  is  estab- 
lished by  or  pu^rsuant  to  a  statute  or  by  its  articles  of 
association  or  is  actually  located  within  the  county,  is 
deemed  a  resident  of  the  county,  and  personal  service 


€IVIL    PROCEDURE    REPORTS.  351 

Heeniin  v.  New  York,  &c.  R.  R.  Co. 

of  a  siimrnons  made  within  the  county,  as  prescribed 
by  the  Code,  is  sufficient  (§  341).  Our  jurisdiction, 
[']  therefore,  by  this  provisi(;n,  in  the  case  of  a  domes- 
tic corporation,  depends  first,  upon  the  location 
M'ithin  our  county  of  its  i)rincipnl  place  of  business, 
whether  by  foice  of  a  special  statute  or  its  articles  of 
association,  or  its  actual  location  ;  and  secondly,  per- 
sonal service  of  the  summons  within  the  county  upon 
one  ol'  those  of  its  oflicei-s  who  may  be  served  under 
the  Code  of  Civil  Procedure  with  a  summons  in  an 
•action  against  it. 

The  provisions  of  the  constitution  in  reference  to 
the  count}"  court  (art.  6,  §15)  are  broad  enough  to  per- 
mit the  legislature  to  confer  this  power  upon  tlie 
county  court,  in  the  cases  of  corporations  doing  busi- 
iiess  in  the  county,  and  that  it  is  so  is  eminently 
.proper  to  -cover  cases  where  large  business  enterprises 
are  carried  on  within  the  county,  and  some  of  its  chief 
officers  within  the  county  directing  its  important  of- 
fices, although  the  principal  office  maj^  be  located  in 
another  county  (Gemp  ?\  Pratt,  7  Dab/,  197,  distin- 
guishing Landers  ^0.  The  S.  I.  R.  R.  Co.,  53  JV.  T.  450). 
Here  the  principal  place  of  business  of  the  de- 
[']  fendant,  by  its  articles  of  association  and  in  fact, 
is  located  within  New  York  county,  and  the  sum- 
4nons  was  not  served  in  this  county.  The  conclusion 
reached  is  that  this  court  has  not  jurisdiction  over  the 
defendant. 

This  brings  us  l^o  the  consideration  of  the  second 
gnestion  :  has  the  defendant  waived,  or  is  it  concluded 
from  raising  the  ol\iecti()n  ?  The  plaintiff  insists  that 
the  defendant  having  answered  and  appeared  generally 
in  the  action,  although  by  its  answer  it  raised  the  issue 
of  its  residence,  it  cannot  now  say  that  it  is  a  non-resi- 
dent of  tlie  county,  as  the  court  could  acquire  juris- 
diction of  the  defendant  by  the  service  of  the  sum- 
mons upon  a  proper  officer  of  the  compan^^  w-ithin  the 


362  CIVIL     PIIOCEDIJIIE     ItK  POUTS. 


llconaii  V.  New  York,  &c.  11.  K.  Co. 


county,  which  could  not  be  done  in  the  case  of  an  in- 
dividual. 

1  am  of  opinion  that  the  allegations  of  the 
[']  con[]i)laint  as  to  residence  were  sufficient,  and  as 
the  defect  of  wliioli  the  defendant  complains  did 
not  ai>pear  on  tlie  face  of  the  comphiinr,  he  could  not 
demur  {Code,  §488.)  The  objection  to  the  jurisdiction 
was  therefore  properly  taken  by  answer  {Code,  §  498, 
HolbrookT).  Baker,  16  I/u7i,  17(5  ;  Mnyhew  v.  Robinson, 
10  J/ow.  Pr.  162-5),  and  was  not  waived  by  appearance 
in  the  action  and  Jinnnswer  therein  setting  up  the  ob- 
jection (Sullivan  v.  Frazer,  4  Robt.  620 ;  Wheelock  o. 
Jjee,  74  N.  Y.  497-8). 

In  opposition  to  the  rule  at  common  law,  under 
[']  the  Code,  a  defendant  may  plead  as  many  de- 
fenses as  he  has,  whether,  as  formerly  denomi- 
nated, to  the  jurisdiction  in  abatement  or  in  bar.  {Code, 
%  507  ;  Sweet  v.  Tattle,  14  N.  Y,  465.)  It  follows,  there- 
fore,' that  the  general  appearance  of  the  defendant, 
distinctly  by  its  i)leading  giving  notice  of  its  intention 
to  raise  the  question  of  jurisdiction,  is  no  waiver,  nor 
does  it  conclude  the  defendant  from  insisting  on  the 
want  of  jurisdicticm  of  this  court.  (Landers  c.  The  S.  I. 
II.  R.  Co.,  53  iV^.  Y.  450;  Davidsburgh  w.  The  K.  L. 
Ins.  Co.,  90  N.  Y.  526.)  The  cases  cited  by  the  plaint- 
iff's counsel  (Paulding  v.  Hudson  Man.  Co.,  2  E.  D. 
Smith,  ;38  ;  Ballard  v.  Burrows,  2  llobt.  206  ;  Olcott  v. 
Maclean,  73  N.  Y.  223)  do  not  apply  to  this  case. 

'  An  order  must  be  entered  granting  the  motion  of 
the  defendant  and  awarding  a  new  trial ;  and  the  com- 
plaint should  be  dismissed. 


CIVIL    PROCEDURE    REPORTS.  353 


Thomas  v.  Utica,  &c.  R.  R.  Co. 


THOMAS   ET  AL.   AS   AL>MINISTKATORS,    ETC.,     V,    THE 

UTICA  &  BLACK  RIVER  RAILROAD 
COMPANY. 

Supreme    Court,    Onondaga    County  Circuit, 
February,  1884. 

§§  1902,  1903. 

Action  for  causing  death. — Measure  of  damages  in. 

In  an  action  for  causing  deatli  by  negligence,  etc.,  the  question  to  b,e 
dccidtd  by  the  jury  in  determining  the  amount  of  damages,  is: 
what  was. the  reasonable  expectation  of  pecuniary  benefit  to  the 
next  of  kin,  etc.,  by  iiilierit.mce  or  otiierwise  from  tliu  continuance 
in  life  of  the  deceased,  worth  in  money  ?  If  tlie  roqnirtments  of  the 
statute  in  other  respects  are  satisfied  tlie  plaintiff  is  entitled  to  re- 
cover at  least  nominal  damages  and  the  fact  that  the  result  of  the 
deceased  surviving  the  casualty  whicii  caused  his  death  was  subject; 
to  chance,  is  no  reason  for  holding  as  a  matter  of  Inw  tliat  plaiutilf 

.     could  not  recover  any  damages  at  all  or  only  nominal  damages. 

(Decided  February,  1884.) 

Motion  bj^  defendant  under  section  999  of  the  Code 
of  Civil  Procedure  for  a  new  trial  on  the  minutes.  Also 
motion  by  plaintiff  for  an  extra  allowance. 

B.  D.  MatheiDS^  for  plaintiffs. 

A.  M,  Beardsly,  for  defendant. 

Vann,  J. — In  this  action  brought  to  recover  dam- 
a^^es  from  the  defendant  for  negligently  causing  the 
death  of  the  plaintilfs  intestate,  the  plaintiff  had  a 
verdict  for  $3,100,  the  main  question  presented  for 
decision  upon  this  motion  for  a  new  trial  relates  to  the 
measure  of  damages  adopted  by  the  court  in  its  charge 
to  the  jury. 

Vol.  VI.— 23 


354  CIVIL    PROCEDURE    REPORTS. 

,  I 

Tliomas  «.  Utica,  &c.  R.  K.  Co, 

The  deceased  was  61  years  of  age,  unmairied,  in 
fair  liealtli,  temperate,  prudent  and  industrious.  He 
hud  accumulated  $5,000  worth  of  property  and  the 
evidence,  warranted  the  jury  in  finding  that  he  was 
still  earning  and  accumulating  when  he  ditd. 

His  expectation  of  life,  according  to  the  tables  in 
common  use  by  insurers  of  lives,  was  twenty  and 
twenty-one  one-hundredth  years. 

He  died  intestate  leaving  him  surviving  only 
brothers  and  sisters,  and  children  of  deceased  brothers 
and  sisters. 

It  was  not  shown  that  anj'-  one  of  these  persons 
had  received  from  him  any  pecuniary  benefit  during 
his  liifetime. 

The  court  submitted  to  the  jury  the  following  ques- 
tion upon  the  subject  of  damages  : 

"What  was  the  reasonable  expectation  of  pecuni- 
ary benefit  to  the  next  of  kin  by  inheritance  or  other- 
wise, from  the  continuance  in  life  of  the  deceased, 
worth  in  money  ?" 

The  defendant  excepted  and  now  contends  that  the 
plaintiffs  were  entitled  at  the  most  to  only  nominal, 
but  really  to  no  damages,  even  if  tlieir  case  was  fully 
made  out  so  far  as  the  questions  relating  to  negligence 
are  concerned. 

■  A  right  of  action  fpr  cansing  death  by  negligence 
is  given  by  section  1902,  of  the  Code  of  Civil  Pro- 
cedure. 

B}'  force  of  the  sfatnte  some  damages  mayjbe  re- 
covered b}^  the  executor  t)r  admiristrator  of  a  decedent 
wlio  has  left  him  or  lier  surviving  a  husband,  wife  or 
next  of  kin,  for  a  wrongful  act  neglect  or  default 
causing  death,  6zc. 

By  holding  otherwise,  courts  would  decide  that 
the  legislature,  liad  created  a  barren  cause  of  action. 
A  right  of  action,  which  is  simply  a  right  to  recover, 
with  no  possibility  of  a  recovery  is  an  absurdity.     At 


CtVIL    PROCEDURE    REPORTS.  355 

Thomas  v.  Utica,  «fec.  R.  R.  Co.- 

teast  nominal  damages  must  therefore  be  awarded  if 
the  statute  is  satisfied  in  other  respects. 

Section  1903  of  the  Code  provides  that  the  dam- 
ages recovered  in  such  an  action  are  exclusively  for 
the  benefit  of  the  husband,  wife  and  n^ext  of  kin,  and 
are  to  be  distributed  as  unbequeathed  assets. 

;  The  next  section  (1904)  provides  that  the  damages 
awarded  may  be  such  a  sum,  not  exceeding  $5,000,  as 
^l^e  jury  deems  to  be  a  fair  and  just  compensation  for 
the  pecuniary  injuries  resulting  from  the  decedent's 
death,  to  the  person  or  persons  for  whose  benefit  the 
action  is  brought. 

In  any  case  the  estimate  of  damages  must,  to  a  cer- 
tain extent,  depend  upon  probabilities,  as  death  is 'the 
cause  of  damages,  continuance  in  life  mnst  be  the 
basis  of  damages.  But  as  life  is  uncertain,  it  cannot 
be  proved  how  long  a  decedent  would  have  lived  if  he 
had  not  been*  killed  ;  therefore  the  probability  of  his 
surviving  for  a  longer  or  shorter  period  must  be  con- 
sidered in  every  case.  Moreover,  the  doctrine  of  prob- 
abilities must  ex-tend  further  and  include  other  ele- 
tnents  that  may  enter  into  the  question  of  damage. 

.  It  may  be  difficult  to  say  in  the  case  under  con- 
sideration that  the  continuance  in  life  of  the  intestate 
would  have  been  of  pecuniary  benefit  to  the  next  of 
kin,  but  it  is  impossible  to  say  that  it  would  not  have 
been  of  substantial  pecuniary  beneiit  to  them.  There- 
fore, the}^  may  have  sustained  a  serious  pecuniary  loss 
by  his  death;  there  was  some  cliance  about  it.  But, 
as  no  logical  verdict  can  be  rendered  for  damages  from 
the  death  of  a  human  being,  und^r  this  statute,  except 
upon  a  calculation  of  chances,  the  question  must  con- 
stantly arise, '' what  were  the  probabilities?  "  In  the 
clearest  case  there  is  at  least  the  chance  that  if  the 
deceased  had  survived  the  accident  he  would  have 
died  from  some  other  cause  in  a  very  short  time. 

Other  elements  of  chance  enter  into  most  cases, — 


356  CIVIL    PROCEDURE    REPORTS. 

Thomas  v.  Utica,  &c.  U,  U.  Co. 

such  as  henltli,  ability  to  labor  or  snppoit,  and  the  like. 
In  the  case  at  bar  the  learned  counsel  for  the  defend- 
ant has  suggested  an  unusual  number  of  chances,  one 
or  more  of  which,  however,  must  apply  to  every 
case  arising  under  the  statute.  Because  the  result 
was  subject  to  chance,  therefore,  is  no  reason  for  hold- 
ing as  matter  of  law  that  the  plaintiffs  were  not  en- 
titled to  recover  any  damages  at  all,  or  only  nominal 
damages.  The  question  in  all  these  cases  must  be, 
what  were  the  chances  worth  in  money  to  the  next  of 
kin  under  all  the  circumstances?  What  were  the 
probabilities  worth?  What  was  the  reasonable  ex- 
pectation of  pecuniary  benefit  worth  ? 

This  was  substantially  the  question  that  the  jury 
was  told  to  answer  in  this  case.  It  was  sent  to  the 
Jury  uplm  the  theory  of  reasonable  expectation,  or  in 
other  words,  probabilities.  That  theory  was  adopted 
without  much  time  for  reflection  ;  but,  even  now,  after 
studying  the  question  with  some  care,  aided  by  tha 
researches  and  arguments  of  counsel,  I  am  unable  to 
improve  upon  it.  Upon  a  second  tiial,  with  my  i)res- 
ent  light  upon  the  subject,  I  should  feel  compelled  to 
ask  the  jury  in  effect  to  answer  the  same  qne'stion. 

Other  grounds  of  error  are  assigned  by  the  defend- 
ant, but  I  have  not  considered  them,  as  I  think  that 
the  general  term  siiould  jiass  upon  the  measure  of 
damages,  before  a  second  trial  is  had,  if  one  is  neces- 
sary. 

The  motion  for  a  new  trial  is  denied,  with  $10  costs. 
The  motion  for  an  extra  allowance  is  denied  without 
costs.  There  may  be  a  stay  of  i)roceeding  for  sixty 
days  after  entry  of  judgment  to  enable  the  defendant 
to  prepare  a  case  and  exceptions. 


CIVIL    PROCEDURE    REPORTS.  357 

Oakcs  ».  Harwuy. 


OAKES,   Individually  and  as  executor,  etc.  v, 
HARWAY. 

City   Court   of  I^kw   York,    Special  Term, 
December,  1884. 

§  3174. 

Citi/  court  of  New    YorTc. — Counter-claim    in    action  in,  brought    by 

executor. 

Where,  in  an  notion  in  the  city  court  of  New  York  brougiU  by  one 
suing  iudividually  aud  as  executor  and  trustee  under  a  will  for 
moneys  loaned  the  <iefendant  by  a  firm  composed  of  the  plaintiff 
individually  and  the  plaintiff  as  executor,  etc.,  tlie  defendant 
pleaded  as  a  counter-claim  a  demand  for  moneys  alleged  to  be  due 
the  defendant  under  an  agreement  made  with  the  plaintiffs  under 
such  firm  name,— iJ^W,  tiiat  if  the  plaintiff  was  authorized  to  con- 
duct business  and  contract  in  said  name  and  was  authorized  to 
sue  thereon,  it  is  subject  to  the  right  of  counter-claim. 

{Decided  December  IS,  1884.) 

Demurrer  to  a  counter-claim  set  up  in  an  answer. 

Tlie  plaintiff  sues  individually  and  as  executor  and 
trustee  under:, the  last  will  and  testament  of  Eliza 
Oakes,  deceased,  to  recover  ^950  and  interest,  moneys 
alleged  'to  have  been  loaned  the  defendant  by  the 
"plaintiffs."  The  complaint  contained  the  following 
allegation,  to  wit: 

*'  1st.  That  at  the  times  hereinafter  mentioned  said 
plaintiff's  Francis  J.  Oakes  individually,  and  said  Fran- 
cis J.  Oakes  as  the  executor  and  trustee  under  the 
last  will  and  testament  of  Eliza  Oakes,  deceased,  were 
doing  business  together  in  the  city  of  New  York  as 
copartners  under  the  lirni  name  of  Oakes-&  Co.;"  and 
then  sets  out  the  loan. 


358  CIVIL    PROCEDURE    RBPOm^Srv 

Oakes  V.  Harway. 

The  defendant's  answer  (omitting  tlie  formal  parts) 
was  as  follows  ; 

'■'' J^irst  As  a  defense  to  this  action  and  as  a 
counter-claim  to  the  demand  of  the  plaintiffs  in  said 
♦-•omplaint  alleged,  this  defendant  alleges,  that  hereto- 
fore and  on  or  about  the  1st  day  of  Ja4iuary^  1884,  the 
plaintiffs,  in  their  ffrm  name  of  Oakes  &  Co.,  executed 
and  delivered  to  this  defendant  a  certain  agreement 
in  writing  bearing  date  on  that  day,  wherein  and  where- 
by said  plaintiffs  in  and  by  said  tirm  name  of  Oakes  & 
Co.,  promised  and  agreed  to  pay  in  menthlypayments- 
to  this  defendant  one  tifth  of  all  profits  on  all  sales  of 
dye  woods,  and  dye  wood  extracts,  paste  and  liquors 
of  whatever  name  or  nature  made  by  said  i)laintiff"s- 
for  the  term  of  live  yeai'a  from  the  date  of  said  agree- 
ment;  that  said  plaintiffs  have  since  the  execution 
and  delivery  of  said  agreement  sold  large  quantities  of 
dye  woods  and  dye  wood  extracts,  paste  and  liquors 
made  by  said  plaintiffs,  ui)on  which  they  have  mad^ 
large  profits  ;.  that  this  defendant  has  often  applied 
to,  and  demanded  of  said  i)]aintiffs  an  account  and. 
statement  of  such  sales  by  them  since  the  date  of 
said  agreement,  and  that  tliey  pay  to  this  defendant 
the  amount  of  one  fifth  of  the  piolits  thereon  accord- 
ing to  their  said  agreement,  but  they  have  neglected 
and  refused  to  make  such  account  or  statement,  and' 
to  pay  over  the  said  one  fifth  of  the  profits  thereon  t(x 
this  defendant.  That  this  defendant  has  no  iufoinia- 
tiou  of  the  precise  amount  of  profits  upoH  said  dye 
woods  and  dye  wood  extracts,  paste  and  liq-iiors,  made- 
by  said  plaintiff's,  antl  he  has  not  had,  and  has  not 
now,  any  nieans  of  ascertaining  tlie  precise  amount  of 
such  profits,  and  cannot  ascertain  the  same  precisely,. 
and  particularly,  without  inspection  and  examitiatiou 
of  i)laintiff'8  books  of  account,  but  upon  information 
and  belief  he  avers  that  the  said  one-fifth  of  the  pro- 
fits aforesaid,  now  due  to  this  defendant  from  said 


CIVIL    PROCEDURE     REPORTS.  359 

Oiiki;s  V.  Iliirway. 

plaintiffs  aiuounts  in  llie  iiggivgale  to  a  sum  i'ar  ex- 
ceeding the  amount  claimed  in  tiie  complaint  herein, 
and  I'or  which  judgment  is  demanded  therein,  and 
amounts  to  the  sum  of  at  least  $2,000. 

"  VVherel'ore  this  defendant  demands  that  the  plaint- 
iffs herein  be  required  to  account  to  him  ior  the  said 
one-fifth  of  the  profits  upon  said  articles  mentioned  in 
s;i id  agreement  according  to  the  terms  of  said  agree- 
ment, and  that  he  recover  such  sum  as  may  be  found 
due  to  him,  as  a  counter-claim  in  this  action  to  the  ex- 
tent of  $2,000,  and  that  out  of  the  amount  of  sucli 
sum  found  due  to  him,  the  amount  of  the  claim  of  the 
!>  lain  riffs  herein  be  deducted  and  allowed,  and  that  he 
have  judgment  for  the  balance  thereof,  with  his  costs 
in  this  action." 

To  tlie  counter-claim  set  up  in  this  answer  the 
plaintiff  demurred  on  the  ground  that  the  "court  has 
not  jurisdiction  of  the  subject  thereof,  the  alleged 
counter-claim  being  of  such  a  nature  that  this  court  has 
no  jurisdiction  of  an  action  thereupon." 

George  Ilill,  for  plaintiffs  and  demurrer. 

Theodore  N.  3Ielvin  {Melcin  &  Sleekier^  attorneys), 
for  defendant,  opposed. 

McAdam,  Ch.  J. — Tlie  i:)laintiff  individually,  and  as 
executor,  &c.  of  Eliza  Oakes,  does  business  under  the 
name  of  Oakes  &  Co.,  and  in  that  name  lent  tiie  de- 
fendant $1,950,  of  which  8950  is  claimed  to  be  due. 
The  defendant  by  not  denying  admits  the  plaintiffs' 
cause  of  action,  and  pleads  by  way  of  counter-claim, 
the  breach  of  a  contract  made  hy  the  plaintiffs  in  said 
liim  name, and  in  like  capacit}^  on  which  the  defendant 
has  suffered  $2,000  damages.  If  the  plaintiff  is  author- 
ized to  conduct  business  and  contract  in  the  name  al- 
leged, and  is  authorized  to  sue  thereon,  it  is  subject  to.. 


300  CIVIL    PROCEDURE     REPORTS. 

Fiudeu  V.  Tallman. 

the  light  of  count er-clnim  and  authorized  bj'^  the  Code. 
Section  3174  does  not  militate  against  this  construction, 
for  it  expressly  provides  "that  in  an  action  brought 
by  an  executor  or  administrator  a/i?/ counter-claim  may 
be  inteiposed,  which  could  be  interposed  in  a  like 
action  brought  in  the  snpreme  court."  The  counter- 
claim pleaded  here  could  have  been  pleaded  in  a  like 
action  brought  in  the  supreme  court,  and  is  therefore 
properly  pleaded  here.  The  policy  of  the  law  is,  that 
where  a  party  brings  suit,  and  voluntarily  brings  him- 
self within  the  jurisdiction  of  a  court,  he  must  settle 
the  controversy  fheie,  and  cannot  complain  that  the 
power  to  do  even  justice  is  limited.  This  rule  has  its 
exceptions,  of  course,  but  the  present  case  does  not 
furnish  one  of  them.  It  follows  that  the  defendant 
must  have  judgment  on  thedemurrer,  with  leave,  how- 
ever, to  the  plaintiff  to  withdraw  the  demurrer,  and 
reply  to  the  counter-claim  within  six  days  on  payment 
of  ten  dollars  cost. 


PRUDEN  AND  ANOTHER  V.  TALLMAN. 

N.  Y.  CouuT  OF  Common  Pleas,  Special  Term,  Jan- 
uary, 1885. 

§§  867-869,  2432  et  seq. 

Supplementary  proceedings. — Mode  of  compelling  production  of  books, 
etc.  on  examintition  in. 

A  witness  or  pnrty  in  proceedings  supplementary  to  execution  may  be 
ri(jnirLd  lo  pruduci;  books,  psipcrs,  etc.,  by  u  siibpceaa  duces  tecum^ 
or  by  II n  order. 

(^Decided  January  10,  1885.) 


CIVIL    PROCEDURE     REPORTS.  361 


Pruden   v.   Tallman, 


Motion  to  set  aside  an  order  of  a  referee  in  proceed- 
ings supplementary  to  execution  requiring  the  judg- 
ment debtor  to  produce  certain  books. 

The  plaintiff  as  judgment  creditor  x)rocured  an 
order  for  the  examination  of  the  defendant  in  proceed- 
ings .sui)plementary  to  execution,  before  A.  H.  Ber- 
rick,  referee.  After  the  defendant's  examination  had 
been  commenced  the  following  order  was  made  by  the 
referee  : 

"Adjournment  to  Wednesday,  December  31st,  at 
2  P.  M.,  at  which  time  I  direct  said  Darius  Tallman  to 
appear  for  further  examination,  and  to  bring  with  him 
the  books  of  account  of  his  business  herein  testified, 
and  bring  the  books  testified  to." 

The  defendant  thereupon  served  notice  upon  the 
plaintiff's  attorney  that  he  would  "Inake  a  motion 
before  one  of  the  justices  of  this  court  at  a  special  term 
thereof,"  "for  an  order  of  this  court  overruling  the 
direction  of  said  referee,  that  the  defendant  herein 
produce  before  said  referee  at  his  examination  in  said 
proceedings  his  books  of  account,  and  for  such  other 
or  further  order  as  to  the  court  shall  seem  proper  in 
the  premi.^es,"  and  on  the  day  named  in  the  notice 
made  this  motion. 

Stephen  A.  Walker,  for  judgment  debtor  and  mo- 
tion. 

Edgar  J.  PJillllps,  for  judgment  creditor,  opposed. 

J.  F.  Daly,  J. — A  witness  maj^  be  required  by  sub- 
poena duces  tecum  to  produce  papers  on  an  examina- 
tion in  supplementary  proceedings  (Champlin  v.  Stod- 
dard, 17  N.  Y.  Weekly  Dig.  76),  and  of  course  a  party 
may  be.* 

*  The  following  decisioa  applies  tlie  same  rule  to  a  case  iu  which 
the  witness  was  u  corporalioa. 


363  CIVIL    PROCEDUKE     REPORTS. 

•  Prude  11  V.  Tall  man. 

Thar,  being  the  case,  an  order  may  be  made  I'or  the 
production  of  books,  &c.  under  sections  8G7-8C9,  in- 
stead of  resorting  to  a  subpoena.  The  order  may  be 
made  by  the  referee  before  whom  the  examination  is 
had,  under  the  two  sections  cited.     Motion  denied. 

HOLMES,  BOOTH  &  HAYDEN  v.   STIETZ. 

CiTT  CouKT  OF  New  Youk.  CiiAMuicits,  OcTon£u,  188i. 

§§  8G7-869,  2432  et  seq.,  2444. 

Supplementary  proceedings. — Compelling  prothiction  of  looks  of  corporo 

Hon,  allied  as  a  witness  in. 
A  corporation   called  as  a  witness  in  proceedings  supjilementary  to 
execution  may  be  compelled  to  produce  its  books  either  by  order  or 
by  .'iubpoena  duces  tecum. 
{Decided  October  25,  1884.)  , 

Motion  to  vacate  an  order  requiring  the  president  of  a  corponition 
called  as  a  witness  in  supplement.! ry  proceedings  to  produce  its 
books. 

On  the  examination  of  tlie  defendant,  in  proceedings  sup])Ie- 
meiitary  to  execution  it  appeared  that  he  was  the  president  and  super- 
intendent of  the  Otto  Stielz  JS'.  Y.  Glass  Letter  Co.  Thereupon  the 
))roeeedings  were  adjourned  and  he  w;is  ordered  individually  and  as 
president  and  superintendent  of  said  company  to  produce  certain 
books  and  papers  of  tlie  company  to,  be  used  on  sucli  examination. 
Whereupon  this  motion  was  made. 

E.  P.  Wilder,  for  the  judgment  debtor  and  motion. 
Thomas  11.  Ijurowshj,  for  the  plaintiff,  o))posed. 

Hawes,  J. — The  defendant  claims  that  a  corporation,  called  as  a 
witness  in  a  supplementiiry  proceeding,  cannot  be  compelled  to  pro- 
duce its  books  either  by  order  or  sul)poena  duces  tecum.  TI.ere  seems 
to  be  no  question  but  what  this  could  be  done  upon  a  trinl,  for  what- 
ever may  have  been  the  previous  lulings  in  this  State  upon  that  ques- 
tion, it  is  expressly  allowed  by  §  808  of  the  Code,  and  a  corporation 
nlihough  not  a  party  to  the  action,  is  brou:;ht  within  the  same  cafe- 
gory  as  a  natural  person.  1  fail  to  discover  any  valid  reason  why  the 
statute  docs  not  apply  to  a  iiearing  in  a  special  proceeding.  It  is  to 
all  intents  and  purposes  a  trial,  so  far  as  the  taking  of  testimony  is 
concerned,  and  §  2444  of  the  Code  expressly  declares  that  either  party 
may  be  examined  as  a  witness  in  his  own  behalf,  and  m:iy  produce 
and  examine  other  witnesses  as  upon  the  trial  of  an  action.     I  have 


dTIL    PROCEDURE     REPORTS:  363 


Keeler  v.  McNeiiney. 


KEELER  V.  MoNEIRNEY. 

Supreme  Court,  Oi^ondaga  County,  Special  Term, 
May,  1883. 

§§  447,  1498. 

Action  to  foreclose  mortgage. — Question  which  cannot  ie  tried  in. 

In  an  action  to  foreclose  a  mortgage  ■where  a  defendant  claims  title 
paramount  to  the  mortgagee  under  a  deed  executed  before,  but 
recorded  after  the  making  and  recording  of  tlie  mrrtgage  in  suit, 
the  court  can  not  determine  whetlier  or  not  the  mortgagee  was  a 
purchaser  in  good  faith  and  for  a  valual)le  consideration,  for  tlie 
purpose  of  deciding  which  of  tlie  parties  had  precedence  under  the 
recording  act;  the  rights  of  the  parties  under  the  recording  acts' 
are  legal  rights  triable  in  the  forum  whcie  legal  lights  are  triable 
and  not  at  special  term,  and  the  title  which  passes  to  a  purchaser 
on  foreclosure  does  not  include  riglits  piramount  to  the  title  of  the 
morti^agor  or  mortgagee  at  the  date  of  the  mortgage. 

Emigrant  Industrial  Savings  Bunk  v.  Goldman  (To  iV.  T.  127);  Paya 
V.  Grant  {2'^ Hun,  134),  followed;  Brown  v.  Volkening  (64  N.  Y.  76), 
distinguished. 

{Decided  May  4,  1883.) 

no  doubt  that  §§  8(58  and  869,  which  are  new,  were  designed  to  meet 
such  a  case  as. is  now  |)resented,  and  the  attempted  distinction  which 
is  sought  to  be  made  between  an  action  and  a  special  proceeding  has 
no  foundation  in  fact. 

The  right  to  compel  the  production  of  the  books  of  a  corporation 
■when  it  is  not  a  i)arty  to  an  action  is  valid  under  the  statute,  and  the 
proceedings  of  the  plaintifT  in  that  behalf  are  regular.  The  case  of 
Wertiieim  v.  The  Continental  Railway  Co.  (3  N.  7.  Civ.  Pro.  371, 
U.  S.  Circuit  Court),  holds  that  it  is  a  right  at  common  law,  but  I  do 
not  deem  it  necessary  to  consider  tiiat  phrase  of  tlie  case,  inasmuch 
as  I  am  of  opinion  that  the  Code  has  express^ly  granted  the  power. 
Although  it  may  be  added  that  if  such  a  right  did  exist  at  common 
law,  there  could  be  no  pretence  of  an  argument  that  the  statute,  by 
using  the  word  '"trial,"  intentionally  restricted  it  to  the  trial  of  an 
action.  Section  2444  of  the  Code,  however,  expressly  negatives  any 
such  distinction  and  grants  to  a  party  in  that  respect  all  the  rights 
■which  he  would  have  upon  the  trial  of  an  action. 

Motion  to  vacate  the  order  is  denied. 


364  CIVIL    PROCEDURE     REPORTS. 

Kft'Ier  V.  McNc'irncy. 

Action  to  foreclose  a  mortgsge  ou  real  property. 

The  opinion  states  the  facts. 

I).  B.  Keeler,  plaintiff  in  person. 

Geo.  N.  Kennedij  a  ndJi.  F.  Sherlock^  for  defendan  ts. 

Mp:rwin',  J. — The  plaintiff  seeks  to  foreclose  a 
mortgage  given  October  20,  1871,  by  James  A.  O'Hara, 
to  Charles  C.  Gustin  for  $435.00  recorded  same  day 
and  assigned  November  10,  1876,  to  the  jjlaintiff,  the 
assignment  not  being  recorded.  The  complaint  is  in 
the  ordinary  form  and  alleges  that  the  defendants 
McNeirney  and  O'Kiley,  have  or  claim  some  interest 
in  or  lien  upon  the  mortgaged  premises,  which  interest 
or  lien,  if  any,  has  accrued  subsequently  to  the  mort- 
gage. There  is  no  special  allegation  as  to  the  character 
of  the  interest  of  those  defendants. 

Those  defendants  answer  and  deny  the  mortgage 
and  assignment,  and  allege  that  said  premises  were  on 
April  27,  1871,  for  a  valuable  consideration  duly  con- 
veyed by  said  O'Hara  by  warranty  deed  to  Bishop 
Conroy,  who  on  September  25,  1878,  for  valuable  con- 
sideration by  quitclaim  deed,  duly  conveyed  them 
to  the  defendant  McNeirney,  that  Bishop  Conroy 
went  into  possession  at  the  date  of  the  deed  to  him 
and  so  remained  till  he  conveyed  to  McNeirney  ;  and 
the  latter  then  went  into  possession  and  has  since  so 
remained  ;  and  that  the  said  mortgagee  and  plaintiff 
had  full  notice  of  said  conveyances. 

It  appeared  on  the  trial  that  the  deed  to  Conroy 
was  recorded  September  23,  1872,  being  after  thegiving 
and  recording  of  the  mortgage,  so  that  the  real  question 
between  the  parties  is  which  has  precedence  under 
the  recording  acts,  and  that  depends  upon  whether  the 
mortgagee  was  a  purchaser  in  good  faith  and  for  a 
valuable  consideration  (3  It.  S.  7  ed.  2215).  The  point 
is  taken  by  the  defendant,  that  the  question  cannot  be 


CIVIL    PROCEDURE    REPORTS.  365 

Keeler  v.  McNierncy. 

determined  in  this  action  it  being  brought  simply  for 
the  foreclosure  of  the  mortgage. 

In  Emigrant  Ind.  Savings  Bank  v.  Goldman  (75  iV. 
Y.  127)  and  in  Payn  v.  Grant  (23  Hun,  134),  it  was  in 
effect  decided  that  legal  rights  accruing  prior  to  the 
mortgage  were  not  cut  off  by  a  foreclosure,  and  this  too 
although  the  parlies  holding  such  prior  rights  were 
made  parties  defendant  with  the  usual  allegation 
(9  N.  r.  502  ;*  64  iV.  Y.  77).  The  rights  of  parties 
under  the  recording  act  are  legal  rights  and  triable  in 
the  forum  where  legal  rights  are  triable.  They  are  not 
triable  at  special  term  unless  the  parties  consent ;  that 
consent  does  not  exist  in  the  present  case.  Had  the 
complaint  set  out  the  facts  in  regard  to  this  question 
and  claimed  its  adjudication  here,  the  complaint  would 
have  been  demurrable  (2  Barb.  20  ;t  75  iV.  Y.  132:}:). 
The  statute  prescribes  what  title  shall  pass  to  a  pur- 
chaser on  foreclosure  (3  It  S.  6  ed.  199,  §  102 ;  Code 
Civ.  Pro.  §  1632)  and  does  not  embrace  interests  which 
are  paramount  to  the  title  of  the  mortgagor  and  mort- 
gagee at  the  date  of  the  mortgage  (75  JV.  Y.  132  ;:|: 
9  JV.  Y.  .^)02§). 

If  the  opinion  of  Judge  Allen  in  Brown  v.  Volken- 
ing  (64  i\^.  Y.  76),  is  deemed  an  authority  in  the  light 
of  the  subsequent  cases,  it  may  be  said  that  in  that 
case  equitable  not  legal  rights  were  involved  ;  this 
being  the  situation,  I  think  that  I  have  no  right  to 
determine  in  this  action,  whether  or  not  the  mortgagee 
■was  a  purchaser  in  good  faith  and  for  a  valuable 
consideration.  It  does  not  follow,  I  think,  that  the 
complaint  should  be  dismissed  as  to  the  defendant 
McNeirnej\  He  may  have  rights  subsequent  to  the 
mortgagee,  and  if  so  as  to  those  the  foreclosure  should 

*  Lewis  V.  Sniitli. 

t  Ilolcomb  V.  Ilolcomb. 

I  Emigrant's  Ind.  Savings  Bank  v.  Goldman. 

§  Lewis  V.  Smith. 


-3Gfi  CIVIL    PROCKDURK    REPORTS. 

Smith  p,  Fogarty, 

be  operative,  and  it  can  be  so  only  by  his  remaining-a 
])arty  defendant.  This  is  the  logic  of  the  case  of  Frost 
1'.  Koon  (30  JY.  i'.  428,  443).  This  decree,  however, 
shoiikl  contain  a  special  provision  that  any  rights  of 
these  defendants, prior  to  the  mortgages,  should  not  be 
deemf^d  to  be  in  a  any  way  affected  by  the  foreclosure. 
'J'he  defendants  who  defend  are  not  in  my  opinion  en- 
titled to  costs.  It  is  at  least  probable  their  rights 
-would  have  been  fully  protected  without  answer,  and 
besides,  they  unnecessarily  put  at  issue  the  existence 
of  the  mortgage  and  assignment.  The  plaintilT  is  en- 
titled to  a  judgment  of  foreclosure  in  the  usual  form, 
adding,  however,  a  separate  provision  as  above  sug- 
gested. 


SMITH  ET  AL.  t).  FOGARTY. 

City  Court  of  New  York,  Special  Term,  Sep- 
tember, 1884. 

§§  435,  436,  437,  636, 1216. 

Aitaehment. — When  affidavit  on  which  grcmtedr  insiiffident.^Substitvtei, 

seitice  of  summons.  — When  time  to  answer  expires.  —  When 

d-dcrjvr  set  aside. — Rroofon  entry  of  judgment  on. 

•Where  tlie  affidavit  upon  whitih  an  attachment  was  issued  stated  as 
tiie  ground  for  issuing  the  attnchment  "that  tlie  defunchiiit  has 
sold  and  mortgaged  a  portion  of  or  all  of  liis  pro|)erty  for  the  j)ur- 
pose  and  with  the  intent  to  ciieat  and  dcfrnud  liis  ereditors  niid 
•particularly  the  plaintiffs  .  .  .  .;  that  deponent  was  ir.formed  and 
verily  believes  ti)at  the  defendant  is  l;irgely  in  debt;  and  tlint  tlie 
defend;int  keeps  himself  concealed,  as  deponent  believes,  with  the 
intent  to  hinder,  delay  and  defmnd  his  creditors  and  with  tlic  in- 
tent of  eviwling  service  of  process,"  and  tliat  a  notice  had  appeared 
in  the  Z/e?'a^t^  of  August  8,  tiiat  the  defendant  was- missing  since 
'•  last  Tuesday,"  with  a  description  of  his  person,  and  no  other  facts 
or  statements  were  set  forth,  siiowing  fraud,— //eZ'/,  tiiut  the  affida- 
vit was  insufficient  and  the  attachment  should  be  setr  aside. 


CIVIL    PROCEDTTRE    REPORTS.  3^7 

Smith  V.  Fugarty, 

If  substituted  service  of  a  summons  is  ordered  when  the  jjhice  where 
the  defendant  can  be  found  is  known  to  the  plaintiff,  the  proceed- 
ings are  irregular  and  the  order  should  be  set  aside. 

A  defendant,  upon  whom  substituted  service  of  a  summons  is  made, 
is  not  in  default  until  the  expiration  of  six  days  after  the  filing  of 
an  affidavit  showing  service  according  to  the  order. 

By  section  437  of  the  Code  of  Civil  Procedure,  substituted  service  of 
a  summons  is  assimil-ited  to  that  by  publication,  and  application 
to  the  court  and  the  same  kiuds  of  proofs  are  necessary  in  cases  t)f 
substituted  service  as  where  the  service  is-by  pubKcation. 

{Decided  Sejdemher  9,  1884.) 

Motion  to  vacate  attachment  and  set  aside  order  for 
substituted  service,  and  judgment  entered  on  such  ser- 
vice. 

Henry  M.  Gold/ogle^  for  defendant  and  motion. 

Hugh  Reavy,  for  plaintiff,  opposed. 

BuowjSTf,  J. — Motion  to  vacate  warrant  of  attach- 
ment. Order  for  substituted  service  of  the  summons, 
and  the  judgment  entered  against  the  defendant  upon 
such  service. 

The  questions  will  be  taken  up  in  their  order. 

Tlie  affidavit  upon  which  the  attacliment  was 
granted  sets  forth  a  cause  of  action  and  that  there  is 
a  sum  dne  to  plaintiff  over  and  above  all  counter- 
claims. The  following  statements  are  set  forth  as  con- 
stituting the  grounds  for  the  issuing  of  the  attach- 
ment, to  wit  :  "  that  defendant  has  sold  and  mort- 
gaged a  portion  of  or  all  of  his  ])roperty  for  the  pur- 
pose and  with  the  intent  to  ch.eat  and  defraud  his 
creditors  and  particularly  the  plaintiff,  and  by  reason 
thereof  the  plaintiff  was  so  cheated  and  defrauded  out 
of  the  sum  above  mentioned.  That  deponent  was  in- 
formed and  veril}'  believes  that  the  defendant  is 
-largely  in  debt.    That  the  defendant  keeps  himself 


368  CIVIL     PROCEDURE    REPORTS. 

Smitli  V.  Fojrarty. 

concealed,  as  deponent  believes,  wirli  the  intent  to 
hinder  delay  and  defraud  his  creditors,  and  with  the 
intent  of  evading  services  of  process." 

It  then  recites  that  a  notice  appeared  in  the  lieraJd 
of  August  S,  that  Richard  Fogarty,  of  Ninty-iiinrh 
street  and  Third  avenue,  was  missing  since  Tuesday, 
with  a  description  of  his  person. 

Diligent  creditors  are  entitled  to  the  remedies  pro- 
vided hy  law  for  their  protection  against  the  acts  of 
fraudulent  debtors,  and  where  the  facts  and  circum- 
stances presented  to  a  court  or  judge  are  such,  that 
the  intent  to  defraud  appears  to  be  a  fair  and  logical 
sequence  from  the  facts  shown,  the  protection  will  be 
extended  and  maintained,  but  there  must  exist  a  fid  be 
shown  by  affidavit,  this  intent  to  def)aud  or  to  delay 
creditors,  before  the  debtor's  property  will  be  seized  in 
advance  of  the  creditor's  establishment  of  his  right  to 
a  judgment  against  his  debtor.  In  the  case  at  bar  no 
facts  or  circumstances  are  shown  entitling  the  plaintiff 
to  the  warrant.  The  affidavit  contains  but  general 
allegations,  that  the  defendant  was  guilty  of  the  vari- 
ous acts  stated  in  the  Code  as  ground  for  the  granting 
of  the  warrant,  and  using  almost  the  identical  language 
of  the  Code.  None  of  the  statements  have  even  the  vii- 
tue  of  positiveness  to  commend  them  ;  that  as  to  sale  or 
mortgaging  of  defendant's  propert}'^  being  in  the  alter- 
native, while  the  other  statements  are  upon  the  inform- 
ation and  belief,  or  belief  alone,  of  the  affiant  ;  neither 
the  source  of  information  nor  the  grounds  of  belief  are 
given.  I  might  n)ultii)ly  reasons  and  cite  innumer- 
able authorities  showing  the  viciousness  of  the  affidavit 
and  its  insufficiency  to  maintain,  the  attachment  in 
this  case  ;  one  or  two,  illustrating  the  principle,  I  think, 
will  answer.  In  Yates  v.  North,  44  N.  Y.  271,  it  was 
held  that  "a  general  statement  that  a  fraudulent  dis- 
position of  defendant's  property  had  been  made  is  in- 


CIVIL    PROCEDURE    REPORTS.  369 

Smith  t>.  Fogarty. 

sufficient.  The  facts  must  be  stated  from  which  the 
legal  conclusion  of  fraud  must  flow."  In  Ellison  v. 
Bernstein,  60  How.  Pr.  145,  the  belief  of  a  party  is 
of  no  weight.  The  intent  to  defraud  must  be  the  fair 
and  logical  sequence  of  the  facts  shown. 

This  affidavit  is  not  even  supported  when  opportu- 
nity is  given  to  do  so  upon  a  hearing  upon  the  merits  ; 
no  additional  proof  is  offered  from  which  the  intent, 
either  of  fraudulent  dispcsiiion  can  be  drawn,  or  of 
concealment  with  intent  to  avoid  service  of  process  at 
the  time  the  warrant  was  applied  for. 

On  the  contrary,  the  proof  offered  tends  to  repel  the 
existence  of  such  intent,  either  of  concealment  or  fraud- 
ulent disposition,  rather  than  establish  it.  The  deputy 
sheriff  who  levied  the  attachment  swears  he  found  de- 
fendant's wife  in  possession  of  both  stores,  when  he 
made  his  levj^  The  business  thereat  was  conducted  in 
the  usual  way.  Tiie  defendant  swears  he  never  sold  or 
disposed  of  his  property  except  in  his  usual  course  of 
business,  and  defendant  explains  that  his  absence 
from  the  city  was  caused  by  a  visit,  undertaken  while 
in  a  partial  state  of  intoxication,  to  some  relatives  in 
Savannah,  without  previous  deliberation,  and  without 
informing  his  wife.  Upon  his  arrival  at  Savannah  he 
wrote  to  his  wife  informing  her  of  his  whereabouts  ; 
in  the  meantime  she  carried  on  his  business  in  the 
usual  methods,  paid  plaintiff's  $100  on  account  of  their 
claim,  and  informed  plaintiff",  after  receipt  of  the  let- 
ter, of  the  whereabouts  of  her  husband.  They  first 
attached  his  goods  atid  then  telegraphed  to  him  to 
come  home.  He  leaves  his  friends  and  arrives  in  this 
city  a  few  days  thereafter. 

I  fail  to  discover  in  these  facts  the  intent  to 
defraud,  or  of  concealment  with  intent  to  delaj'  credi- 
tors.    The  warrant  of  attachment  cannot  be  sustained. 

It  is  unnecessary  to  consider  the  questions  raised 
Vol.  VI.— 24 


370  CIVIL    PROCEDURE    REPORTS. 

Smith  V.  Fogarty. 

Upon  formality  or  sufficiency  of  tlie  levy  under  the 
attachment. 

The  affidavits  upon  which  the  order  for  substituted 
service  was  granted,  were  prima  facie  sufficient  to 
authorizing  the  granting  of  the  order.  But  the  i)Iaint- 
iffs  purposely  or  otherwise  concealed  from  the  jut^tice 
who  granted  the  order  the  fact  that  the  place  of  so- 
journ of  the  defendant  was  known  to  them.  Section 
•4^5  Code  permits  the  order  to  be  made,  when  proper 
and  diligent  effort  has  been  made  to  serve  the  summons 
upon  the  defendant,  and  tJtat  the  place  of  his  sojourn 
cannot  he  ascertained.  The  applicntion  for  the  order 
was  made  on  the  16th  of  August.  The  plaintiffs  were 
informed  by  defendnnt's  wife  about  August  9th  of 
defendant's  [)lace  of  sojourn  at  Savannah  ;  on  the  14th, 
at  least  not  later  than  the  loth  of  August,  and  a  day 
before  the  order  was  apfilied  for,  the  plaintiffs  tele- 
graphed to  the  defendant  at  Savannah  to  return  to 
Kew  York.  The  plaintiffs  had  knowledge,  at  the  time 
the  order  w-ns  a[)plied  for,  of  the  exact  spot  where 
defendant  could  be  found.  If  substituted  service  is 
ordered  when  residence  of  defendant  without  the  State 
is  known,  the  proceedings  are  irregular  (Collins  o. 
Campfield,  9  How.  Pr.  5H)  ;  Jones  d.  Derby,  1  Abb.  Fr. 
458;  Foot  ?}.  Harris,  2  Id.  454;  Collins  v.  Ryan,  32 
Barb.  647). 

For  the  reasons  stated,  the  order  for  substituted 
service  will  be  set  aside. 

Assuming,  however,  that  the  order  for  substituted 
service  is  good,  the  judgment  entered  thereon  is  irreg- 
ular. 

The  effect  of  provisions  of  sections  4v37  is  to  make 
the  service  described  in  the  order  of  substituted  ser- 
vice assimilate  to  that  of  service  by  publication.  The 
result  is  that  the  defendant  on  wiiom  such  service  is 
made  is  not  in  default  until  the  expiration  of  six  days 
after  the  filing  of  an  affidavit,  showing  service  accord- 


CIVIL    PROCEDURE    REPORTS.  371 

.Krotn  V.  Kursheedt. 

K'lg  to  l:lie  order.  The  affidavit  of  service  in  this  case 
was  filed  on  August  23,  and  judgment  entered  the 
same  day.     This  was  premature  (16  Hun^  625^). 

The  assimilation  of  j^roceedings  in  cases  of  substi- 
tuted service  to  that  of  service  by  publication  also  ex- 
tends to  the  proofs  necessary  to  be  taken  before  judg- 
ment can  be  regularly  entered.  Section  1216  provides 
that  "where  service  is  made  upon  a  defendant  .... 
dtherwis^  thnn  pereonally  and  he  is  in  default,  the 
plaintiff  may  apply  to  the  court  for  the  judgment  de- 
manded in  the  complaint."  It  also  recites  the  proofs 
required  before  judgment  can  be  entered. 

The  plaintiff  neglected  compliance  with  these  essen- 
tial prerequisites  to  the  entry  of  his  judgment,  but 
5)roceeded  to  enter  judgment  as  for  default  of  appear- 
ance upon  personal  service  of  the  summons  upon  the 
defendant.     He  was  decidedly  wrong. 

For  the  reasons  stated  the  warrant  of  attachment 
order  for  substituted  service  and  judgment  herein 
svdll  be  vacated  and  set  aside,  with  costs. 


KROM  V.  KURSHEEDT,   Respondent  ;  Wellman, 
Appellant. 

Superior  Court  of  the  City  of  New  York,  Gen- 
eral Term,  November,  1884. 

§§3268,  3278. 

Security  for  costs.—  Wh<it  presence  in  State  does  not  constitute  residence^  — 
Liability  of  attorney  for  costs. 

The  fact  that  at  the  time    of   the   commencement  of  an  action    the 
plaintiff,  who  was  domiciled  with  his  family  in  anotiicr  State,  had 

*'Orr  V.  McEwea. 


CIVIL    PROCEDURE    REPORTS. 


Krom  V.  Kursl\cedt. 


been  engaged  in  business  in  the  city  of  New  Yor^  for  about  six- 
teen je.irs,  does  not  miike  Him  a  resident  of  tlie  State  within  the 
meuning  of  section  Ji268  of  the  Code  of  Civil  Procedure,  which 
requires  non-residents  to  give  security  for  costs.  Mere  presence  in 
the  State  during  business  hours  does  not  constitute  residence. 

It  is  no  answer  to  a  motion  to  charge  an  attorney  witii  the  costs  of  an 
action  on  tjjc  ground  tliat  liis  client,  being  liable  to  give  security 
for  costs  had  not  done  so,  that  the  attorney  began  the  action  iu 
good  faith  and  in  tl)e  belief  that  the  plaintiflf  and  his  family  were 
domiciled  within  the  State,  nor  does  tlie  omission  of  the  defendant 
to  demand  security  forcostaduringthependency  of  the  action  affect 
tile  attorney's  liability. 

{Decided  December  1,  1884.) 

Appeal  by  George  F.  Wellman  from  an  order  re- 
quiring him  to  pay  the  respondent  one  hundred  dol- 
lars on  account  of  the  costs  awarded  to  him  by  tlie 
judgment  in  this  action. 

This  action  was  commenced  May  19,  1882,  and  ter- 
minated July  10,  1884,  in  a  judgment  in  defendant's 
favor  for  $105.85  costs,  on  which  an  execution  against 
the  property  of  the  plaintiff  was  issued  and  returned 
unsatislied  and  the  plaintiff  examined  in  sui>plen)en- 
tary  proceedings.  Thereafter,  on  affidavits  showing 
these  facts  and  that  the  defendant  had  resided  with 
his  family  at  Plainlield,  !N.  J.,  since  1870  and  had  not 
given  security  for  costs  in  the  action,  the  defendant 
moved  the  court  at  special  term  "for  an  oider  that 
George  F.  Wellman,  the  attorney  for  the  plainiiff 
herein,  i)ay  to  the  defendant  one  hundred  dollars  on 
accou:«.t  of  the  costs  awaided  to  the  defendant  bj'  the 
judgment  in  this  action.-' 

On  the  argument  of  the  motion  the  appellant  \)ve-  . 
sented  affidtivits  avering  that  th(^  plaintiff  had  for  six- 
teen years  last  past  been  "permanently  located  and 
establislied  in  business  in  New  York  city,"  and  during 
that  period  had  "not  owned  any  property  of  any  name 
or  nature  out  of  the  city  and  State  of  New  York  ;" 


CIVIL     PROCEDURE    REPORTS.  373 

Krom  «.  Kurshcedt. 

that  at  the  time  of  the  commencement  of  this  action, 
the  appellant  knew  "that  the  phiintiif  wasdoin<^  busi- 
ness in  the  city  of  New  York,  and  had  been  informed 
and  supposed  that  plainliff's  family  resided  in  said 
city  of  New  York,  and  did  not  know  to  the  contrary 
until  on  or  about  July  20,  when  he  was  informed  of 
t|ie  fact  by  the  attorneys  for  defendant  ;"  that  al- 
thougli  the  action  was  pending  nearly  two  and  one 
half  years,  the  defendant's  attorney  served  no  notice 
requiring  the  plaintiff  to  file  security  for  costs;  that 
had  he  done  so  the  appellant  would  have  had  said 
costs  secured  ;  and  that  when  the  action  was  brought, 
the  plaintiff  was  responsible  for  the  costs  of  said 
action,  but  dining  pendency  of  same  he  has  become 
embarrassed  and  unable  to  meet  his  obligations. 

The  court  granted  the  motion,  and  the  order  ap- 
pealed from  was  thereupon  entered. 

A.  B..  Moore,  for  appellant. 

A  person  haying  a  permanent  business  in  New  York 
which  he  attends  to  frpm  day  to  day  is  not  a  non-resi- 
dent within  the  meaning  of  section  3268,  though  his 
family  be  domiciled  in  another  State.  Code  Oh.  Pro. 
§§  82(58,  8278.  A  party  to  an  action  will  be  considered 
as  residing  within  the- jurisdiction  of  the  court,  when 
both  his  person  a.nd  his  property  can  be  subjected  to 
a  process  of  the  court,  issued  to  the  sheriff  of  the 
county  in  which   he  carries  on  a  permanent  business, 

1  WaiVs  Pr.  JOG  ;  2  Id.  .568  ;  10  How.  Pr.  1 ;  18  Id. 
275  ;  14  Ahb,  Pr.  119.  ...  A.  man  can  have  his  resi- 
dence in  one  State  and  his  domicil  in  another.  A 
man  has  a  residence  where  he  is  permanently  located 
in  business  though  he  board  and  lodge  with  his  family 
in  another  State.  See  opinion  of  Chief  Justice  Nkl- 
soN.  in  Frost  ?i,  Brisbane,  19  Wend.  11-13;  see  also 

2  Kent's  Commentaries,  10  ed.  .574-576  ;  i9  Maine^ 
293;  Douglas  o.  }^l•^\o\\  2  Ducr^lld.  .  .  .  The  attor- 


374  CIVTL    PROGEDU«E    REPORTS;- 

Krom  V.  Eurshecdt. 

t . . 

ney  for  tlte  pkiintiff  ought  not  to  be  held  liable  in  any, 
event.     He  commenced  the  action  in  good  I'aith  sup- 
posing and  believing  theplaintiif  and  his  family  domi- 
ciled in   the  State  of  New  York.     The   defendant's 
attorney  could  not  req^uire  plaintiff  to  file  security  for 
costs  because  of  his  laches*     The  action  had  been  com- 
menced and  pending  for  more  than  two  years,  and  a.^ 
trial  had  ;  if  defendant  could  not  compel  plaintiff  to- 
tile  security  for  costs,  certainly  the- attorney  for  the- 
plaintiff  should  not  be  held  responsible  for  costs  on. 
the  ground  that  plaintiff  is  a  non-resident.     See  Fitz-. 
Simmons  v.  Curley,  dJV.  T.  Civ.  Pro.  156  ;.  Swan  v.  Mat- 
thews, 3  Duer,  613;  Florence  v,  Bulkley,  1  Id.  706;: 
Gardner  v.  Kelly,  2  Sand.  632. 

The  motion  should  have  been  denied.     No  reason  . 
was  stated  in  the  notice  of  motion  why  plaintiff's  attor- 
ney should  be  charg<id  with  costs.     No  irregularities 
or  other  reason  specified  as  required  by  the  rules  of 
practice. 

The  irregularities  must  be  specified,  or  grounds  of 
relief  stated  in  the  notice  of  motion  or  order  to  show- 
cause.     Lewis  V.  Graham,  IQ  Abh.  Pr.  126;  Supreme^. 
Court  Rules ^  37. 

31.  A.  KursTieedt^  for  defendant,  respondent. 

By  section  3268  of  the  Code  of  Civil  Procedure,  the- 
defentlant  may  require  security  for  costs  to  b»?  given 
where  the  plaintiff  was,   when   the  action  was  com- 
menced, a  ]Mirson  re'siding  without  the  State.     By  s^cr 
tion  3278  of  the  Code,  wht-re  a  defendant  is  entitled  lo. 
require  security  for  costs,  as  prescribed  in  section  3208,. 
thn  plaintiff's  attorney  is  liable  for   the  defendant's. 
(•osi«  to  an  amount  not  exceeding  $100,  until  secuiiry 
is  given  as  prescribed  in    the   same  title.     The  order 
appealed  from  was  therefore  fully  warranted  by  the- 
facts  shown   to   the  court   below.     4  N.  Y.  Civ.  Pro, 
101,   note.     The   fact  stated   in   the  affidavit   of   the. 


CIVIL     PROCEDURE     REPuRTS.  376 


Krom  V.  Kurslicrdt. 


plaintiff  that  his  business  residence  was  in  the  city, 
did  not  constitute  any  defense  to  the  motion.  His 
actual  residence  was,  nevertlieless,  without  tbe  State. 
Wallace  o.  Castle,  68  IV.  Y.  3^70,  374  ;  Cliaine  v.  VVil- 
son,  1  Bosto.  873 ;  Barry  «.  Bockover,  6  Abb.  Pr.  y>li4: ; 
4  N.  Y.  Civ.  Pro.  c>7,  note.  The  omission  of  tlie  de- 
fendant to  demand  security  for  costs  while  the  action 
was  pending,  does  not  affect  the  attorney's  liability. 
III.  re  Levy,  2  N.  Y.  Oio.  Pro.  108  ;  Boyce  v.  Bates,  8 
Iltm.  Pr.  ^5. 

Fri:edmax,  J. — This  is  an  appeal  by  George  F. 
Well  man,  the  attorney  for  the  plaintiff,  from  an  order 
i-equiring  him  as  such  attorney  to  pay  to  the  defend- 
ant the  snm  of  $100  on  account  of  the  costs  awarded 
the  defendant  in  the  action.  At  the  time  of  the  com- 
mencement of  the  action  the  plaintiff  resided  with  his 
family  at  Plaijifield,  New  Jersey,  and  he  still  contin- 
ues to  reside  there, 

Bj'^  section  3268  of  the  Code  of  Civil  Procedure,  the 
defendant  maj'-  require  security  for  costs  to  be  given 
where  the  plaintiff  was,  when  the  action  was  com- 
menced, a  person  residing  without  the  State  ;  and  by- 
section  3278  the  plaintiff's  attorney  in  such  a  oas^  is 
made  liable  for  the  defendnnt's  costs  to  an  amount  not 
exceeding  $100,  until  security  is  given  as  i)rescribed, 
although  the  defendant  has  not  required  such  security 
to  be  given- 
It  is  claimed,  however,  by  the  appellant,  that  I  e- 
caurte  it  w;is  made  to  appear  by  affidavit  that  at  the 
time  of  the  commencement  of  the  action,  the  i)]aintiff 
hatl  been  engaged  in  business  in  the  city  of  New  York 
for  about  sixteen  years,  he  was  not  a  non  resident 
within  the  meaning  of  section  3268,  though  he  and  his 
family  were  domiciled  in  another  State. 

After  a  careful   examination  of  the  cases  cited  to 
illustrate  the  distinction  between  residence  and  dom- 


376  CIVML     l^ROCEDURK    KEPORTS. 

Krom  V.  Kurshet'dt. 

icil,  and  conceding  that  a  person  can  have  a  residence 
in  one  Stare  and  his  domicil  in  another,  I  fail  to  see 
how  the  appellant  can  be  relieved.  Mere  presence  in 
the  State  during  business  hours  has  never  yet  been 
held  to  constitute  residence.  On  the  contrary,  in  the 
enforcement  of  our  attachment  laws  against  non-resi- 
dents, it  has  repeatedly  been  held  that  presence  dur- 
ing business  hours  in  this  State  does  not  amount  to 
residence  (Wallace  ?;.  Castle,  6S  JY.  Y.  870;  Chaine  v. 
Wilson,  1  Bosw.  G73  ;  Biirry  v.  Bockover,  6  Abb.  Fr. 
374). 

In  the  absence,  therefore,  of  a  statutory  provision 
making  presence  during  business  hours  in  the  State 
equivalent  to  residence,  in  the  construction  of  section 
8268,  the  order  appealed  from  was  fully  warranted  by 
the  facts  shown  to  the  court  below. 

It  is  no  answer,  under  section  8278,  that  the  appel- 
lant commenced  the  action  in  good  faith,  and  in- the 
l)elief  that  the  plaintiff  and  his  family  were  domiciled, 
in  New  York.  Nor  does  the  omission  of  the  defend- 
ant to  demand  security  for  costs  during  the  pendency 
of  the  action  affect  the  attorney's  liability  (Matter  of 
I^vy,  2  N.  r.  Olv.  Pro.  108). 

There  being  no  merit  in  any  of  the  points  raised 
by  the  appellant,  the  order  appealed  from  should  be 
affirmed,  with  costs,  &o. 

Skdqwick,  Ch.  J.,  and  Van  Vorst,  J.,  con- 
curred. 


CIVIL     PROCEDURE     REPORTS.  377 

Hiiyes  V.  Davidson. 


HAYES  AS  AssiGNTEE,  ETC.,  OF  GRANT,  Appellant, 

V.  DAVIDSON,  Sheriff  of  the  City  and  County 

OF  New  Youk,  et  al.,  Respondents 

Supreme  Court,  First  Department,  General  Term, 
October,  1884. 

§§  1421-1425. 

Sheriff. — Svhstiiution  of  indemnitors  for,  inaction  against,  for  wrong- 
fully talcing,  etc.,  personal  jjroperty. — Instance  of  case  in  which 
properly  ordered. — Liability  of  indemnitors. —  Waiver 
of  objection. 

Where,  in  an  action  by  an  assignee  for  the  benefit  of  creditors  against 
a  sheriff  to  recover  for  the  alleged  wrongful  taking  of  certain  per- 
sonal property  seized  and  taken  by  the  sheriff  under  four  attach- 
ments and  an  execution  against  the  assignor,  it  appeared  that  the 
property  was  held  and  sold  by  the  sheriff  under  such  attachments 
and  executions  and  under  two  other  attachments  and  three  other 
executions  issued  against  the  property  of  the  assignor  after  the  as- 
signment, and  that  tlie  attacliing  creditors  and  the  creditors  in  two 
of  tiie  executions  iiad  at  ditlerent  times  given  bonds  of  indemnity 
to  the  slieriff,  whicli  bonds  contained  the  same  conditions,  and  were 
not  given  to  protect  the  slieriff  from  lialiility  as  to  any  specific  or 
divisible  portion  of  tiie  property  but  applied  to  the  wiiole, — Held, 
that  an  order  was  prof)erly  granted  substituting  such  indemnitors 
as  defendants  in  place  of  the  sheriff;  that  if  the  seizures  of  the 
property  or  the  holding  possession  of  and  afterwards  selling  it  were 
■wrongful,  the  parties  to  the  bonds  rendered  themselves  jointly 
liable  for  the  wrong  by  their  undertaking  to  save  the  sheriff  harm- 
less from  loss  for  holding  the  property  against  the  claim  of  the 
plaintiff;  [*,■*,']  that  the  same  evidence  required  to  present  the  case 
against  the  sheriff,  with  the  addition  of  the  fact  of  the  execution 
and  delivery  of  the  bonds,  would  present  it  completely  and  effect- 
ually against  the  parties  who  executed  the  bonds,  and  no  important 
right  or  interest  of  the  plaintiff  would  be  in  any  respect  jeopardised 
or  changed  by  substituting  those  parties  as  defendants  in  the  action 
in  place  of  the  sheriff.     Davis,  P.  J.   (dissenting), — Held,  that  the 


178^  CIVIL    PROCEDirRE     REPORTS.^ 

Hayes  v.  Davidson. 

provision  of  Uie  Code  for  such  substitulion  wus  only  intended  to 
apply  to  clear  and  plain  cases  of  liability  by  indemnitors  for  any 
and  all  the  grounds  of  action  upon  which  tlie  phiintiH  at  the  trial 
might  elect  to  stand.  ['J  and  that  substitution  sliould  not  have  beeifc 
onlered  in  this  case.["'] 

If  in  such  a  case  any  of  the  bondsmen  were  limited  in  the  extent  of 
their  liability  to  only  a  portion  of  tiie  property  seized  under  any 
particuUu-  attachment  or  cxxicutiou,  a  sui)»lituiion  should  not  b» 
ordered,  for  the  joint  action  could  not  be  made  divisible'  or  appor= 
tioned  in  sueii  a  manner  as  to  determine  the  amount  for  whicii  » 
liability  would  arise  under  each  respective  attachment  or  execu- 
tion.[', '"J 

Where  parties,  even  after  llie  seizure  of  property  by  the  sheriff,  furnish 
liiin  with  indemnity  against  iJibility  for  hi^acts  in  taking,  holding 
and  disposing  of  it,  if  a  wrong  was  committed  by  the  seizure  they 
make  themselves  parties  to  the  wrong  and  lijible  for  the  full  value 
of  the  property  so  seized. [^J 

If.tiie  objection  tliat  an  indemnity  bond  was  nut  given  until  after  the 
c<>mmeiicemei>tof  the  action  is  not  niiide  on  a  motion  to  substitute  the 
imlemnitors  tlierein  in  place  of  the  sheriff  in  an  action  against  him 
for  wrongfully  seizijig  persoaal  property,  il.  is  waiveel  and  cauuot 
be  raised  on  appeal  from  an  order  granting. the  motion. [•] 

(Decided  November  13,  1884.) 

Appeals  from  orders  substituting  the  obligors  in 
e*^rtain  bonds  of  indemnity  ns  defendants  in  place  of 
the  sheriff  in  an  action  brought  against  liim  for  seizing 
and  converting. personal  property. 

The  facts  appear  in  the  opinions. 

Peter  Condon,  for  plaintiff,  appellant. 

William    Burke    Cockran,    for    the    sheriff,    res- 
pondent. 

George  F.  Langhe in,  Edward  R  Hatch  and  Blu- 
menstiel  &  Hirscli,  for  the  bondsmen,  respondents. 

Daniels,  J.— The  property  in  suit  and  for  the 
value  of  which  the  plaintiff,  as  substituted  assignee, 


CrVIJ.    PROCEDURE    REPORTS.  37& 

Hayes  v.  Davidson, 

claims  to  recover  against   the  sheriff,   consisted  of  a- 
stock  of  goods  and  fixtures  contained  in   the  stbie  28( 
West   Twenty-third   street,   occupied  by   Duncan  A.. 
Grant.     He  had  previously  made  a  general  assignment, 
for  the  benefit  of  his  creditors  to  a  predecessor  of  the» 
plaintiff,  who  commenced   this  action  as  a  substituted 
assignee.     After  the  assignment,    the   property   was< 
seized  by  the  sheriff',  on  January  4,  1884,  under  four 
attachments  and  one  execution,  issued  in  favor  of  as- 
many  different  creditors.     The  sheriff,  on  January  4^. 
seized  and  took  possession  of  all  the  stock  and  fix- 
tures contained   in  the  store  previously  occupied  by. 
the   debtor.     After   that,   and   an   January   12,   1884,. 
another  attachment  was  issued   to  him,  and  still  an- 
other on  the  26th  of  the  same  month,  and  on  the  14ths 
of  that  month  anotlier  execution  was  issued  to  him. 
against  the  same  debtor.    Three  other  executions  were 
also  issued,  and  the  sheriff  finally  held  possession  oh 
the   property  under  all   the  attachments  and  the  five- 
executions.     The  creditors  for  whose  benefit  the  prop- 
erty was  seized  by  the  sheriff  under  the  attachments,  . 
and  the  executions  issued  on  January  3  and  14,  sev- 
erally delivered  to  the  sheriff  bonds  of  indemnity  to^ 
indemnify  him  and  save  him  harmless  from  loss  by. 
reason  of  Ijis  holding  the  property  against  the  claim 
of  the  assignee.     These  bonds  were  given  at  different 
times,  but  they  were  all  stated  to  have  contained,  the- 
same  condition.     And  under  and  by  virtue  of  the  in- 
demnity so  provided,  and   the  process  issued   tg  the 
sheriff,  he  afterwards  sold   the  property  seized,  with- 
the  exception  of  eleven  cases  of  goods  "of  the  value  of 
$4,000,  which  were  returned   to  the   plaintiff.     After 
this  indemnity  had  been  provided  for,  the  sheriff,  the- 
attaching  creditors,  and  the  creditors  in  the   two  exe- 
cutions, who  executed  the  bond  with  their  sureties, 
applied  to  the  court  to  be  substituted  as  the  defend- 
ants in  the  action  in  the  i)lace  of  the  sheriff,  under  the- 


380  CIVIL    PROCEDURE    REPORTS. 

Hayes  v.  Davidson, 

aiithoiity  of  section  1421  of  the  Code,  and  an  order  to 
that  effect  was  made  by  the  court,  placing  the  appli- 
cants in  the  legal  position  where  they  themselves  were 
at  liberty  to  take  charge  of  the  defense  of  the  action 
in  their  own  behalf. 

It  has  been  objected  that  the  sureties  to  the  sheriff, 
severally'  securing  the  seizure  of  property  in  this  man- 
ner, are  not  entitled  under  the  authority  of  this  sec- 
tion to  be  substituted  in  his  place  as  defendants  in  the 
action.     And  if  nny  of  the  ai)plicants  were  limited  in 

extent  of  their  liability  to  only  a  i)ortion  of  the 
[']     property  seized  under  any  particular  attachment 

or  execution,  the  objection  would  probably  be 
well  founded,  for  the  joint  action  could  not  be  made 
divisible  or  apportioned  in  such  a  manner  as  to  deter- 
mine the  amount  for  which  a  liability  would  arise 
under  each  respective  nttachment  or  execution.  An 
order  in  such  a  case  would  subject  the  plaintiff  to  too 
many  risks  and  en>barrassments  to  render  it  a  proper 
exercise  of  discretion  under  this  section.  If  made  at 
all  in  a  case  of  that  description  it  would  necessarily  be 
for  a  division  of  the  action  under  section  1424  of  the 
Code,  limiting  the  liability  of  the  applicants  to  that 
jjart  only  of  the  property  as  might  have  been  seized  or 
taken  under  his  or  their  process.  But  in  this  action 
no  difficulty  of  that  description  can  possibly  be  en- 
countered. For  it  was  after  the  sheriff  had  seized  the 
entire  stock  of  goods  and  fixtures  that  the  several 
Iwnds  of  indemnity  were  given  to  him,  and  by  virtue 
of  these  bonds  the  i)roperty  was  retained  and  after- 
wards sold.     If   the  seizures  of   the  property,   under 

the  attachments  and  the  executions  were  wrong- 
[']     ful,  the  parties  to  these  bonds  rendered  themselves 

liable  for  the  wrong  by  their  undertaking  to  save 
the  sheriff  harmless  from  loss  for  holding  the  property 
against  the  claim  of  the  ])laintiff.  Neither  of  the 
bonds  was  given  to  protect  him  from  such  liability  as 


CIVIL    PROCEDURE    REPORTS.  381 

Hayes  r.  Diividson. 

to  any  specific  or  divisible  portion  of  the  property,  bnt 
the  language  of  each  of  the  bonds  is  shown  to  have 
been  so  broad  as  to  include  all  the  property  which  the 
sheriff  had  seized.  For  that  reason  it  cannot  be  im- 
l)(>rtant  to  inquire  whether  he  had  made  an  excessive 
seizure  or  taken  more  property  into  his  possession 
than  the  attachments  and  the  executions  authorized 
him  to  take.  For  by  these  bonds,  the  parties  to  them 
took  upon  themselves  the  entire  responsibility  of  sav- 
ing the  sheriff  harmless  from  loss  for  taking  all  the 
property,  as  that  has  been  done  under  the  processes 
issued  to  him  ;  for,  where  parties  even  after  the  seiz- 
ure of  property  by  the  sheriff  furnish  him  with  indem- 
nity against  liability  for  his  acts  in  talking,  hold- 
[']  ing  and  disposing  of  it,  they  make  themselves 
parties  to  the  wrong,  if  a  wrong  was  committed  by 
the  seizure,  and  liable  for  the  full  value  of  the  prop- 
erty so  seized  (HeiTing  v.  Hoppock,  3  Duer,  20 ; 
affimied,  15  JV.  Y.  409  ;  Griffiths  v.  Hardenburgh,  41 
M.  464 ;  Chapman  o.  O'Brien,  39  jV.  Y.  Super.  Ct. 
244). 

Whether,  therefore,  the  sheriff  seized  and  sold  no 
more  of  the  property  than  Was  necessary  to  satisfy 
the  debts  mentioned  in  the  attachmentsand  executions 
or  made  an  excessive  seizure,  it  is  not  necessary  to  in- 
quire ;  for  the  persons  executing  the  several  bonds 
[*]  assumed  the  responsibility  of  all  that  he  had  done 
in  that  respect  and  subjected  themselves  to  the 
liability  of  S5iving  him  harmless  from  the  legal  conse- 
quences of  his  acts.  They  practically  combined  the 
stMZures  which  had  been  several,  and  previously  made, 
and  assumed  their  consequences  as  one  act,  by  means 
of  the  bonds  executed  and  delivered  to  the  sheriff. 
And  the  case  was  then  presented  substantially  the 
same  as  a  single  seizure  under  the  attachments  and  exe- 
cutions, which  brought  it  within  the  spirit,  if  not  liter- 
ally within  the  language,  of  section  1421  of  the  Code. 


-^nSZ  'CITIL    PIIOCE  DURE 'REPORTS. 

—^.—~— —  .i  i  ii. 

.Hayes  o.  Davidson. 

From  that  time  the  creditois  and  tlieir  suivfit-^ 
"{']  were  all  united  in  maintaining  and  protecting  the 
act  of  the  sheriff  in  holding  possession  of  and 
-{tfterward  selling  tiie  property.  And  if  any  wrong  or 
'Ifgal  liabiiit}'  was  created  by  his  acts  in  doing  that, 
the  parries  to  each  of  these  bonds  became  jointly 
liable  for  the  con  sequences  of  those  acts  and  that  pre- 
<sented  a  case  within  this  section  of  the  Code  {Mal- 
-colra  V.  O'Reilly,  89  JV.Y.  loB  ;  Hessberg  v.  Riley, 
\i  A\  Y.  Oiv.  Pro.  1(55  ;  Hein  ?).  Davidson,  5  Id.  301). 

It  has  been  objected  to  the  order  that  it  was  not 
-made  to  appear  by  the  affidavits  in  support  of- the 
■motion  that  the  bonds  were  given  previous  to  the  com 
■niencement  of  the  suit.  But  if  that  were  necessary,  a 
strong  probability  arises  that  they  were^so  given. 
irhe  lirst  was  executed  and  delivered  on  the  9th;  of 
January,  1884:,  and  the  last  on  the  13th  of  February, 
1884,  and  it  was  not  intimated  in  the  affidavit  made  by 
'the  phnntifif  that  the  suit  against  the  sheriff  had  been 
commenced  -before  that  time.  If  that  was  the  fact,  and 
any  advantage  could  be  derived  from  it  by  stating  it, 
the  plaintiff  should  at  least  have  snggested  it  in 
"[*]  the  allidavit  made  by  him  for  the  purpose  of  op- 
posing the  motion.  That  was  not  done,  neither 
-does  it  appear  that  any  objection  was  taken  to  the 
•omission  of  the  statement  on  the  hearing  of  the  nio- 
i-ion  which  resulted  in  the  order.  If  it  had  then  been 
made,  proof  on  the  subject  could  have  been  supplied 
-b}'^  the  permission  of  the  court,  which  would  havere- 
tnoved  all  unceit^jiinty  as  to  this  fact  in  the  case,  and 
the  plaintiff's  failure  to  present  the  objection  at  that 
lime  precludes  him  from  deriving  any  advantage  from 
4t  when  first  made  upon  the  hearing  of  the  appeal. 

It  was  also  objected   that  the  order  should  not; 

{*]    be  made  without  requiring  a  stipulation  from  the 

indemnitors  allowing  the  statements  or  admissions 

made  by  the  sheriff  to  be  given  in  evidence  against 


CIVIL    PROCEDFRE    REPORTS.  .583 

Hayes  v.  Davidson. 

them  upon  the  trial.     But  the  right  to  give  such  testi- 

jnony  cannot  be  an  important  one  to  the  plaintiff;  for 
])roof  of  the  fact  can  be  really  given  that  the  sheriff 
did  seize  the  entire  stock  and  fixtures  contained  in  the 
store  No.  28 West  Twenty-third  street,  and  the  bonds 
given  by  the  applicants,  even  though  less  in  the 
aggregate  tl>an  the  value  of  the  property,  subject¥»d 
them  to  liability  for  all  the  consequences  of  such 
seizure.     And  those  facts,  together  with  the  proof  of 

•  the' value  of  the  property  seized,  will  be  all  that  can 
be  required  to  make  out  the  plaintiff's  right  to  recov- 
er, in  the  first  instance;  and  it  will  be  for  the  defend- 
ants themselves-  to  establish  the  fact,  if  that  can  be 
done,  that  they  were  entitled   to   seize   the   property 

notwithstanding  the  preceding  assignment  of  their 
debtor. 

The  same  evidence  required  to  present  the  case 

"[']     against  the  sheriff,  with  the  additional  fact  of  the 

execution  and  delivery  of  the  bonds,  will  present 

it  completely  and  effectually  against  the  parties  exe- 

ixjuting  those  bonds,  and  no  important  right  or  interest 
of  the  plaintiff  will  be  in  any  respect  jeopardized  or 
changed  by  substituting  those  parties  as  defendants 
in  the  action  in  place  of  the  sheriff. 

The  fact  that  the  sheriff  also  acted  under  three 
other  executions  in  seizing  and  holding  the  property 
is  a  circumstance  of  no  importance.  .For  as  to  all 
-the  property  which  he    took,   the  parties   executing 

4 he   bonds  rendered  themselves  jointly  liable  to  the 

■  plaintiff*. 

The  order,  for  these-reasons  was  right  and  it  should 

-be  affirnied,  with  $10  costs  and  the  disbursements. 


Brady,  J. — Iconcur  with  Daniels,  J.    I  think  his 
-reasons  are  conclusive. 


-Da-vis.  P.  J. — I  do  not  concur  in  the  conclusions  of 


384  CIVIL     rRCX'EDURK     KiaORTS. 

Hiiyi'S  V.  Diividson. 

n)y  brother  Daniels  in  this  case.  Acomplere  and  i)er- 
fect  cause  of  action  arose  in  favor  of  the  plaiiuiff  upon 
the  first  seizure  of  the  stock  of  goods  on  the  4th  of 
January,  1884,  when  the  sherilf  attached  undtook  pos- 
session of  the  stock  of  goods  by  virtue  of  the  attach- 
ments and  execution  then  in  his  hands.  The  plaintiff 
has  a  right  to  rely  on  thlit  cause  of  action  if  he  chooses. 
Subsequently,  on  other  and  different  daysother  a'tach- 
menls  and  executions  came  to  his  hands  upon  which 
he  entered  attachments  and  levies  of  the  same  stock 
then  in  his  possession.  All  the  several  creditors  in 
whose  behalf  the  several  processes  were  issued  after 
their  respective  levies  gave  several  and  separate  bonds 
of  indemnity  to  the  sheriff  under  which  he  proceeded. 
They  all  now  seek  to  be  substituted  as  defend. luts  in 
the  action  against  the  sheriff,  and  to  have  him  dis- 
charged therefrom.  Under  such  circumstances  this  is 
neither  just  nor  equitable.  Several  of  the  defendants 
are  not  liable  for  the  first  seizure,  nor  do  their  bonds  of 
indemnity  extend  to  that.  If  the  plaintiff  prefers  upon 
the  trial  of  the  action  against  the  sheriff'  to  rely  wholly 
on  the  seizure  made  on  the  4tli  of  January,  1884,  he  is 
entitled  to  do  so,  and  for  that  cause  the  creditors  who 
subsequently  issued  attachments  and  executions  are 
not  liable  to  plaintiff  nor  bound  to  indemnify  the 
sheriff.  Nor  is  the  plaintiff  under  any  obligation  to 
accept  as  substituted  defendants  in  his  action  parties 
V  ho,  to  say  the  least,  will  have  power  to  raise  against 
him  embarrassing  and  doubtful  questions  touching 
their  liability  for  acts  of  the  sheriff,  done  for  the  ex- 
clusive benefit  of  others  before  their  processes  were 
imt  in  his  hands.     The  provision  of  the  Code  for  such 

substitution  was  only  intended  lo  apply  to  clear 
[•]     and  plain  cases  of  liability,  or  by  indemnitors,  for 

any  and  all  the  grounds  of  action  upon  which  the 
plaintiff  at  the  trial  may  elect  to  stand. 
^  I  think  there  are  many  embarrassing  questions  in 


CIVIL    PROCEDURE    REPORTS.  385 

Hayes  v.  Davidson. 

this  case  that  may  be  sprung  upon  the  trial  against 
the  plaintiff  if  the  substitution  be  made.  For  instance, 
if  the  sheriff  was  not  liable  for  tort  in  the  original 
seizure,  but  made  himself  so  by  subsequent  misconduct 
affecting  the  property  taken,  by  which  it  was  lost  or 
injured  in  value  prior  to  the  coming  in  of  the  second 
or  third  batches  of  process,  the  plaintiff  may  be  greatly 
embarrassed  inattemi)ting  to  hold  tlie  last  set  or  indeed 
any  of  the  indemnitors  for  that  cause  of  action  ;  and 
so  if  he  chooses  to  stand  on  trial  on  proof  of  the  seizure 
and  removal  of  the  goods  on  the  4th  of  January  it  is 
difficult  to  see  why  a  party  who  had  nothing  to  do  with 
that  wrong  would  not  be  entitled  to  a  non-suit.  It  is 
not  easy  to  see  vvhy,  if  all  the  parties  sought  to  be  sub- 
stituted as  defendants  are  in,  it  will  not  be  necessary 
as  against  each  of  them  to  show  either  a  joint  or  several 
wrongful  act  for  which  he  is  chargeable.  Tiie  plajintiff 
may  therefore  be  forced  to  establish  a  series  of  wrongs 
before  he  can  make  out  a  cause  of  action  against  all 
the  parties,  while  against  the  sheriff  he  may  stand 
upon  a  single  one. 

To  my  mind  the  case  presented  on  the  motion 
is  not  one  upon  which  the  court,  in  the  exercise 
['"]  of  sound  discretion,  ought  to  uphold  the  order  of 
substitution.  It  cannot,  nor  indeed  should  it, 
compel  a  division  of  the  action  into  several  actions, 
because  that  is  imposing  the  burden  of  several  litiga- 
tions upon  the  phiintilf,  where,  in  both  i^act  and  law, 
he  has  a  single  one  against  a  single  defendant,  of 
which  he  cannot  be  deprived. 

1  think  the  order  should  be  reversed,  and  the  mo- 
tion denied. 

Vol.  VI.— 25 


386  CIVIL    PROCEDURE     REPOR'l^. 


Ilurd  V.  Oiinnibal,  &c.  R.  R.  Co. 


HURD,  Appellant  g.  THE  HANNIBAL  AND  ST. 
JOSEPH  RAILROAD  COMPANY,  Respondent. 

Supreme  Court,  First  Department,  General 
Term,  May,  1884. 

§§  1326  et  seq. 

Appeal.  —  Corporate  guarantee  ofundertakivg  on. — Form  of  undertaking 
80  guaranteed. — Justification. 

The  statute  {Laws  of  1881,  chap.  481),  iiutlioiizing  the  acceptance  of 
bonds  and  undertakings  guaranteed  by  certain  corporations,  so  far 
modifies  thu  provisions  of  the  Code  of  Civil  Procedure,  requiring 
two  sureties  in  an  undertaking  on  appeal  as  to  dispense  with  them 
■when  such  a  guarantee  is  given. 

A.n  undertaking  in  tlie  form  required  by  the  Code  of  Civil  Procedure 
given  and  executed  by  the  appellant  and  guaranteed  by  a  corpora- 
tion organized  or  authorized  to  do  business  under  the  laws  of  tliis 
State  and  guarantee  the  fidelity  of  jMjrsons  holding  positions  of 
public  or  i)rivate  trust,  is  sufficient  on  an  appeal  from  a  judgment, 
to  the  court  of  appeals. 

Where  an  undertaking  on  appeal  is  guaranteed  by  a  corporation  au- 
thorized to  guarantee  such  undertakings,  the  respondent  should  be 
])ermitted  to  examine  tiie  officers  of  the  company  as  to  its  ability 
to  enter  into  and  make  the  guarantee. 

Where  an  act  of  the  legislature  {Lttws  of  1881,  chap.  486),  eniiilod 
•'an  act  to  facilitate  the  giving  of  bonds  required  by  law  "  applied 
to  both  bonds  and  undertakings, — llclil,  that  as  bonds  nndunder- 
takings  are  to  a  great  extent  understood  to  be  convertible  terras, 
the  title  of  the  act  was  not  materially  deficient ;["]  that  if  it  had 
been  it  would  be  of  no  importance  for  the  rwvson  that  the  act  is 
neither  a  i)rivate  nor  a  local  one. 

i^DccUled  May  yO,  1884.) 

Appeal  from  an  order  approving  an  underfaking 
given  by  the  defendant  on  an  appeal  to  the  court  of 
appeals. 

The  undertaking  was  executed  by  the  defendant 
and  the  performance  of  its  covenants  and  couditionfi 


mriL    PROCEDURE    REPORTS.  387 

Hmd  0.  Haujiilxil,  &c.  R.  R.  Co. 

gnaraiiteed  by  tht3  Fidelity  and  Casualty  Company  of 
New  York, 

.  The  plaintiff  excepted  to  the  sureties,  and  the  de- 
fendant gave  notice  of  Justification  and  upon  the  return 
day,  the  president  of  the  Fidelity  and  Casualty  Com- 
j)any  attended  in  court  to  Justify,  when  the  plaintiff's 
counsel  objected  to  the  form  of  the  undertaking.  The 
court  overr^iled  the  objections  and  deciding  that  an 
examination  of  the  guarantor's, officers  was  not  neces- 
sary, approved  the  undertaking. 

.    Lyman  B.  Bunnell,  for  plaintiff-appellant. 

Joseph  Kunzman  {Elihxt  Root^  attorney),  for  de- 
fendant-respondent. 

■  Thomas  S.  Moore  {Moore,  Low  tfc  Sand/ord,  attor- 
neys), for  *l'he  Fidelity  &  Casualty  Co. 

Cited  Ryan  tn  Cochran,  11  Abb.  N.  C.  Ill ;  Colgate  v, 
Penn.  R.  R.  Co.,  11  /f/.  Ill ;  Matter  of  Filor,  11  Id.  107. 

Daniels,  J. — The  undertaking  is  in  the  form  pre- 
scribed by  the  Code  of  Civil  Procedure  on  an  appeal 
from  a  Judgment  to  the  court  of  appeals.  It  was  given 
and  executed  by  the  defendant  in  its  corporate  capa- 
city, and  added  to  or  indorsed  upon  it  was  a  guaranty, 
t)f  the  Fidelity  and  Casualty  Company  of  New  York 
by  which  it  guaranteed  the  performance  of  the  cove- 
nants and  conditions  of  the  within  bond.  This  guar- 
antee was  ttiken  under  the  authority  of  chapter  48(h 
x)t  the  Laws  of  aasi,  by  which  any  surrogate.  Judge, 
sheriff,  district  attorney  or  any  other  officer  having  au- 
thority, or  required  to  approve  of  the  sufficiency  of  a 
bond  or  undertaking  may  in  his  discretion,  accept  a 
bond  -and  undertaking  and  ap»prove  the  same  whenever 
its  conditions  are  guaranteed  by  a  company  duly  or- 
ganized or  authorized  to  do  business  under  the  laws 
bf  this  State  and  guarantee  the  fidelity  of  i>ei-sona 


388  CIVIL    PUOCEDUKE    REFORTSj. 


Ilurd  V.  Ilannibal,  &c.  R.  II.  Co. 


liolding  positions  of  public  or  private  trust  and  vesting 
such  corporation  wifli  full  power  to  guarantee  such 
bonds  and  undertakings.  This  language  was  clearly 
so  broad  as  to  include  the  undertaking  given  upon  the 
appeal  in  this  action  ;  and  as  the  company  was  a  cor- 
poiation  having  authority  to  guarantee  the  fidelity 
of  persons  holding  positions  of  public  or  private  trust, 
it  was  by  this  act  emi)oweied  to  make  the  guaranty  it 
did  of  this  undertaking. 

The  act  has  been  objected  to  as  not  being  suffi- 
ciently broad  in  its  title  to  justify  the  enactment.  It 
is  entitled  an  "act  to  facilitate  the  giving  of  bonds 
required  by  law."  But  as  bonds  and  undertakings 
are  to  a  very  great  extent  understood  to  be  convertible 
terms,  the  title  of  the  act  was  not  materially  detieient. 
But  if  it  had  been  it  would  be  of  no  importance  for 
the  reason  that  the  act  is  neither  a  private  nor  a  local 
law.  The  power  and  ability  of  the  company  to  act  in 
this  capacity  was  made  the  subject  of  investigation  by 
the  general  terra  of  this  department,  and  as  itapi)eared 
to  be  incorporated  under  the  general  laws  of  the  State 
and  authorized  to  transact  business  b}''  way  of  guaran- 
teeing the  fidelity  of  persons  holding  positions  of  j)ul)- 
lic  or  private  trust,  this  authority  to  guarantee  bonds 
or  undertakings  subject  to  judicial  ap[)roval  was  found 
to  exist,  and  it  was  accepted  as  competent  ft)r  that 
purpose. 

The  act  has  necessarily  so  far  modified  the  provis- 
ions of  the  Code  of  Civil  Procedure,  requiring  two 
sureties  in  such  an  undertaking  as  to  dis[)eiise  with 
them  when  a  guarantee  of  this  description  may  be 
given.  That  was  clearly  its  object  as  to  all  bonds  and 
undertakings.  It  was  to  substitute  the  guarantee  of 
the  bond  in  place  of  the  liability  and  obligation  of  the 
sureties  otherwise  required  by  law. 

The  court  refused  to  permit  tlie  plaintiff  to  exam- 
ine the  officer  of  the  company  as  to  its  liability   to 


CIVIL    PROCEDURE    REPORTS.  389 

Estate  of  Singer. 

enter  into  and  make  tlie  guaranty.  This  we  think  was 
erroneous.  When  the  sp<ecitic  objection  was  overruled 
further  proceedings  should  have  been  taken  to  exam- 
ine the  officers  on  behalf  of  the  respondent,  if  he  so 
desired,  and  thereupon  the  court  should  liave  approved 
or  disapproved  of  the  undertaking.  The  order  should 
be  modified  accordingly,  and  as  so  modified  affirmed, 
-without  costs. 

DaviSj  p.  J.,  concurred. 


ESTATE  OF  ISAAC  M.  SINGER,  Deceased. 
Sueeogate's  Couet,  Westciiestee  County,  Decem- 

BEE,    1884. 

§  2481  sub.  6. 

Accounting  of  executor^  trustee  and  guardian.  —  Wlien  decrees  made  on, 
will  not  be  opened — Power  of  surro(jate''s  court. 

Before  tlie  Code  of  Civil  Procedure  a  surrogate  had  power  to  o|>en  a 
decree  for  an  excusable  default  resulting  injuriously  to  the  default- 
ing party,  for  clerical  errors,  for  frauds  in  procuring  tite  decree 
and  other  like  causes.  The  only  additional  power  conferred  by  tiie 
<;!ode  (§  2481  sub.  6),  is  to  grant  a  new  trial  or  hearing  for  uewly 
discovered  evidence. ['] 

A  surrogate's  court  had  uo  power  before  the  Code  of  Civil  Procedure 
to  open  a  decree  made  on  an  accounting,  and  grant  a  rehearing  for 
an  error  of  law,  and  the  power  to  do  so  has  not  been  conferred  upon 
it  by  that  Code.[*] 

When  an  intelligent  and  competent  person  is  appointed  special  guar- 
dian of  a  minor  on  tlie  accounting  of  an  executor,  testamentary 
guardian  or  tiustee,  the  decree  made  binds  the  jninor  usanuob  as  it 
.would  an.  adult. [*J 


39a  CIVIL.  -PROOKDUUE    REPORTS. 

Estatft  of  Singer. 

Story  V.   Dayton   (22  Bun,   4oO>;[«J  Tucker  v.   McDcrmott  (2  Hed/i, 

312);[3J  111  leTilden  {Q  m  T.  Civ.  Pro.  15),  [*]  distinguished. 
{Decided  December,  1884.) 

Motion  that  a  decree  made  on  the  accounting  or 
David  Hawley  as  executor  of  the  will  of  the  deceased, 
and  two  decrees  made  on  accountings  by  him  as  trustee 
and  guardian  under  said  will,  be^ojxened,  etc. 

David  Hawley,  the  testamentary  guardian  andr 
trustee  of  Adam  M.  Singer,  under  the  last  will  and 
testament  of  Isaac  M.  Siftger,  deceased,  upon  his 
ward's  attaining  his  majority,  caused  a  citation  to  be 
issued,  requiring  him  to  attend  a  settlement  of  his 
accounts  as  such  guardian,  &c^  Pending  this  proceed- 
ing and  before  the  filing  of  the  account  said  Adam  M. 
Singer  made  this  application,  praying  that  a  decree 
made  on  the  accounting  of  said  Hawley,  as  executor, 
&c.,  of  the  will  of  the  deceased,  entered  in  1877,  and 
that  two  otht^r  decrees  made  on  accountings  by  him  as* 
trustee  and  guardian  of  the  applicant,  entered  respec- 
tively in  1878  and  1881,  might  be  opened,  vacated, 
modified  or  set  aside,  so  far  as  to-permit  him  to  con- 
test the  allowance  of  commissions  made  to  ^aid  execu- 
tor, as  such,  and  as  trustee  and  guardian,  by  said  sev*. 
eral  decrees,  alleging  that  the  same  exceed  the  amounts 
allowable  under  the  statutes,  and  that  some  portion 
thereof  were  illegal  by  reason  of  being  based  upon  the^ 
estimated  value  of  certain  sliares  of  stock  in  the  Singer 
Manufiicturing  Company,  claimed  to  have  been  .sp.rili- 
cally  bequeathed  ;  and  also,  to  permit  him  to  contest, 
cei  tain  items  of  expenditure  allowed  for  le^al  expenses, 
and  legal  and  other  services,  and  also  to  contest  tho 
direction  in  said  decrees  contained  as  to  said  stock, 
and  the  distribution  of  the  ])roceeds  of  certain  realty. 

It  api)eared  on  the  hearing  of  the  motion  that  on, 
each  accounting  a  special  guardian,  was  appointed  lor. 
the  applicant,  then  a  minor^ 


eivfL   PROCErHTiiP:   heports.  391 

Estate  «if  Siiifjer. 

'^~  ' — ~  i 

C.  E.  Tracy^  for  the  petitioner  and  motion. 

jP.  N.  Rangs\  for  the  guardian,  etc..  opposed. 

CoFFix,  S. — Th(^re  can  be  no  doubt  that  subdivis- 
ion (>  of  section  2481  of  the  Code,  is  inapplicable  to 
til  is  case.  The  proceeding  for  tiie  last  of  the  series  of 
accountings  was  commenced  before  chapter  18  went 
into  effect,  and  §:;33-17,  snbd.  11,. does  not  make  it  apply 
It)  such  a  proceeding.  Nevertheless,,  that  section  was 
partly  based  ujwn  former  decisions  of  the  courts,  and 
was  extended,  also,  so  as  to  embrace  a  broader  held  of 

jurisdiction.  Before  the  Code,  a  surrogate  had 
[!]     power  to   open  decrees  for  an    excusable  default 

resulting  injuriously  to  the  defaulting  party,  for 
clerical  error,  for  fraud  in  procuring  the  decree,  and 
other  like  causes.  The  only  additional  power  con- 
ferred is  to  grant  a  new  trial  or  hearing  "for  newly 
discovered  evidence."  Hence,  I  regard  it  as  wholly 
immaterial,  in  this  case,  whether  subd.  6  is  or  is  not 
applicable. 

This  brings  us  at  once  to  the  question,  such  as  it 
i>5,  whether  this  court  can  grant  a  rehearing  for  an  error 
in  law.  This  case  certainly  presents  no  feal  iires  resem- 
bling  fraud,  error  in  phicing  or  adding  hgnres,  pro- 
curing a  signature  to  any  important  voucher  by  fraud- 
ulent representations  by  which  a  credit  is  obtained, 
presenting  a  forged  voucher  and  the  like. 

The  f:icts   in  the  memorandum  of  the  case  of 
p]     Story  7).  Dayton  (22  Hun^  450)  are  not  very  fully 

stated.  It  would  seem  that  one  ground  of  com- 
plaint was  the  apixuntment  of  an  improper  person — a 
cleik  in  the  office  of  the  administrator's  attorney — tis 
the  guardian  ad  litem  for  the  minors.  The  case  as 
leported  discloses  no  particular  errors  of  fact  or  mis- 
takes justifying  the  decision  to  the  effect  that  the  orders 
of  the  surrogate  be  rm'ersed  "  unless  the  respondent' 


392  CIVIL    PROCEDURE    REPORTS. 

Estalti  of  Singer. 

will  Stipulate  that  the  decree  on  final  settlement  may  be 
amended  in  the  particular  specified  in  the  opinion 
herein,"  none  of  v.hifh  are  specified  in  so  much  of 
the  opinion  as  is  published.  Apparently,  errors  in 
fact  are  the  subject  of  the  allusion. 

Tucker   V.    McDermott    (2    Hedf.  312)    lias    no 
[*]    application,  as  it   was  not   on  a  motion  to   oi)en 

a  decree. 

In  re  Til  den  (6  K    Y.  Civ.  Pro.  15),  no  spe- 
[*]     cial    guardian  for   the   minor   was   appointed  on 

the  first  accounting,  which  occurred  in  1872,  be- 
fore the  passage  of  any  act  requiring  the  appointment 
of  snch  on  an  accounting.  But  at  that  time  it  was 
proper,  as  a  matter  of  practice,  to  do  so,  and  was  then 
the  actual  practice  of  this  court,  and  it  had  the  effect 
of  concluding  him  {Da7/lo7i's  Sfir.  Pr.  505-7,  3d  ed. ; 
KellettT).  Rathbone,  4  Paif/e,  102).  This  fact,  alone, 
warranted  the  opening  of  the  first  decree,  and  any 
nlterrition  of  that  necessarily  affected  and  involved  the 
correction  of  other  and  subsequent  accountings  where 
special  guardians  had  been  appointed.  But,  in  that 
cas^,  the  question  here  presented  does  not  seem  to  have 
been  raised,  discussed  or  considered. 

It  is  thus  shown  that  the  authorities  cited  by  the 
learned  counsel  for  the  petitioner  furnish  but  a  feeble 
support  to  tlie  proposition  he  urges.  If  tliere  were  any 
such  errors  committed  in  the  decieesasare  complained 
of,  and  as  to  which  I  am  not  now  in  a  position  to 
determine,  they  were  purely  and  simply  errors  of  Jaw. 
The  question  as  to  the  proper  amount  of  commissions 
to  be  allowed  is  not,  in  many  cases,  easy  of  solution, 
iis  is  evidenced  by  many  recent  and  conflicting  decis- 
ions in  viirious  courts.  Hence,  the  erroneous  fixing 
of  them  in  the  decree  or  the  refnsjil  by  tlie  court  to 
allow  !iny  at  all  (of  which  I  have  heard)  cannot  be 
ch;iraf'teriz«'d  as  a  fraud,  a  n.>istake,  a  clniical  error  or 
the  like.     It  is  simply  an  error  in  law,  however  ignor- 


CIVIL    PROCEDURE    REPORTS.  393 

Estate  of  Singer. 

ant,  corrupt  or  negligent  the  court  may  Lavs  been  in 
the  discharge  of  his  duty,  and  the  only  remedy,  if  tlie 
court,  on  attention  being  called  to  it  dum ferret  opus^ 
fail  to  correct  it,  is  by  appeal.  The  decree  embodies 
the  deliberate  and  solemn,  even  if  reprehensible,  judg- 
ment of  the  court.  This  court,  before  the  Code, 
[^]  possessed  no  power  to  open  such  a  decree  and 
grant  a  rehearing  in  such  a  case,  and  none  has 
been  conferred  upon  it  since,  as  the  phrase  fctr  "  other 
sufficient  cause,''  is  to  be  construed  as  applying  to 
causes  ejusdem  generis  only. 

It  will,  I  think,  be  conceded  that  questions  relat- 
ing to  the  allowance  of  commissions  on  specific  bequests 
have  arisen  mainly  as  matters  of  law  concerning  the 
nature  of  the  bequest  as  being  specific  or  otherwise. 
Their  allowance  or  rejection  is  still  a  question  of  law. 
And  whatever  the  adjudication  may  have  been,  it  can 
only  be  remedied,  if  erroneous,  by  ai)peal,  and  not  by 
a  motion  of  this  character. 

The  authorities  cited  by  the  counsel  for  the 
["]  trustee  abundantly  establish  the  principle  that 
where  an  intelligent  and  competent  i)erson  is  ap- 
pointed the  special  guardian  for  tlie  minor,  the  decree 
binds  him  as  much  as  it  would  an  adult.  No  allega- 
tion is  made  as  to  any  want  of  intelligence  or  compe- 
tency of  the  several  persons  who  wei'e  ai)i>ointed  and 
acted  as  such  on  the  various  accountings,  nor  is  there 
any  suggestion  of  fraudulent  conduct  ou  their  part. 
The  other  errors  complained  of  belong  to  the  ^ame 
category,  no  errors  of  fact  being  assigned,  and  must 
be  disposed  of  accordingly.  Whether  errors  were 
committed  on  any  or  all  of  the  accountings,  it  is,  there- 
fore, needless  to  inquire.  In  any  event,  the  petitioner 
having  been  represented  by  special  guardian  on  each 
occasion,  and  the  time  to  appeal  having  expired.  I  can- 
not but  regard  iiim  as  concluded.     Motion  denied. 


Bdi  CIVIL    PROCEDU RB    RE  VOl  ITS^ 


D*  Vivier  v.  Smitii. 


DE  VIVIER  ET  AL.  V.  SMITH. 

City  Court  of.  New  Yokk,  Chambers,  December,,, 

1884. 

§2464., 
Supplementary  proceedings. — Appointment  of  receive]*, 

Ateoeiver  of  tlie  property  of  a  judgment  debtor  may  be  appointed^ 
ill  proceedings  supplenicntary  to  execution  either  before  or  after 
tlic  return  of  tiie  execution,  upon  the  examination  of  a  third,  person 
indebted  to  or  having  property  of  the  judgment  debtor. 

{JOeeided  December  17,  1884.) 

Application  by  .judgment  creditor  for  the  appoint- 
ment of  a  receiver  of  the  property  of  his  judgment 
debtor. 

The  facts  are  stated  in  the  opinion. 

Edward  Barilett,  for  the  motion. 

Q^iggenheimer  d;  Wnlermeyer,  opposed. 

McAdaMj  Ch.  J. — Frederick  Hacknian,  a  third  per* 
son,  having  property  belonging  to  the  Judgment  debtor,, 
was  examined  under  an  older  sui)pleinentary  to  the 
issuing  and  before  the  return  of  the  execution  herein. 

Tile  plaintiff  moves  for  the  appointment  of  a  re- 
ceiver, and  the  third  person  objects  that  the  applica- 
tion cannot  be  founded  on  the  examination  of  a  third 
person,  particularly  before  the  return  of  an  execution 
unsatisfied.  It  was  held  under  the  old  Code  that  a  re- 
ceiver could  not  be  appointed  where  supplementary 
proceedings  were  instituted  before  the  return  of  tlie 
execution    (Darrow   v.  Lee,  IG  Abd.  Fr.  215).     ^Mr. 


CIYIL    PROOEDlfRE    REPORTS.-  3^ 

De  Vivier  v.  Suiilh. 

Tliroop,  in  a  note  to  his  edition  of  the  Code  (see  note- 
preceding  §  2464),  says  :    "The  books  are  fuJI  of  cases* 
where   the  validity  of  such   appointments  lia.s  been 
tacitly,  if  not  expressly  recognized,"  and  he  relVjis  to- 
Tillotson  V.   Wolcott  (48  JV.  Y.  188),  and  West  Side 
Bank  v.  Pugsley  (47  Id.  368).  He  adds  "  that  the  prac- 
tice of  appointing  ii  receiver  in  proceedings  taken  be- - 
fore  as  well  as  after  the  return  of  an  execution,  had 
become  so  inveterate  that  the  commissioners  were  un- 
willing to  propose  its  abrogation." 

In  order  to  effectually  preserve  the  right  to  appoint*^ 
a  receiver  before,  as  well  as  after,  the  return  of  an  ex- 
ecution, section  2464  provides  that,  *' Atany  time  after 
making  the  Gi*der  requiring  the  judgment  debtor,  or: 
any   other   person,   to  attend   and   be  examined,  the- 
judge     .     .     .    may  make  an  order  appointing  a  re- 
ceiver of  the  property  of  the  judgment  debtor,"  &c. 

The  same  section  provides  for  notice  to  the  judg- 
ment debtor  and  for  cases  in  which  such  notice  may  be-- 
dispensed  with.  In  the  present  instance  the  judgment 
debtor  could  not  be  found,  and  the  judge  dispensed 
with  notice  to  him.  Section  2441,  in  regard  to  supple- 
mentary proceedings  against  third  persons,  is  in  har- 
mony with  ^2464  {supra\  and  clearly  indicates  that  a. 
receiver  may  be  appointed  upon  such  an  examination, 
either  before  or  after  the  return  of  the  execution. 

The  fact  that  §  2446  authorizes  the  judge  to  make 
an  order  permitting  the  third  person  to  pay  the  sheriff' 
on  account  of  the  execution  in  his  hands,  money  con- 
ceded to  be  due  to  the  judgment  debtor,  and  the  ad- 
ditional fact  that  §  2447  authorizes  the  judge  to  make-^ 
an  order  directing  the   tliiid  person  to  deliver  over 
property  in   his  possession   to   the   sheriff,  does  not' 
limit  the  power  of  the  judge,  for  the  section  last  re- 
ferred to  provides  that   the    money  or    property  be 
delivered  to  the  sheriff,  "unless  a  receiver  has  been* 
appointed,"  iScc. 


396  CIVIL    I»ROCEDURE    REPOR'l^S. 

Note  on  AppDiiitment  of  Ileciiiver  in  Supplementary  Proceedings. 

The  fact  of  indebtedness  to  the  jndgment  debtor  is 
conceded  by  the  third  person,  but  the  amount  has  not 
as  yet  been  fully  ascertained,  so  that  no  order  for  the 
payment  over  of  a  specific  sum  can  be  made. 

It  follows,  tlipiefore,  that  the  application  for  the 
appointment  of  a  receiver  is  appropriate,  and  that  the 
application  therefor  must  be  granted. 


Note  on  Appoixtment  of  RECEiVEa   in  Supplementary  Puo- 

CEEDINGS. 

When  and  by  ijcliom    appointed. — Notice    of    appliaition. — Exteiiding 

fonnei'    receivershijin  — Filing  order.  — Security.  — Removing 

receiver. — Effect  of  appointnvent  on  proceedings. 

IVhen  and  by  whom  appointed.  Tlie  Code  of  Civil  Procedure 
(§  2464)  provides  lliat  "at  (iny  time  after  making  an  order  requiring 
tlie  judgment  debtor,  or  any  otiier  person  to  attend  and  l)e  examined 
or  issuing  ft  warrant"  for  tlie  arrest  of  a  judgment  delator  about  to 
leave  the  state  or  conceal  himself,  "  the  judge  to  wliom  the  order  or 
warrant  is  returnable  may  make  an  order,  appointing  a  receiver  of 
the  property  of  the  judgment  debtor." 

Under  this  provisirm  a  receiver  may  be  appointed  at  any  time 
after  the  granting  of  an  order  (or  warrant),  for  the  ex^vmination 
either  of  the  debwr  or  atliird  person,  and  irrespectiveof  wlielher  tlie 
exec-ution  has  been  returned.     De  Vivier  v.  Smith.  ««/;?•«. 

Under  the  old  Code  it  was  hehl  tliat  an  application  for  the  appoint- 
ment of  a  receiver  in  supplenn-ntary  procee<liii<^s  must  be  made  to  tiie 
judge  wIk?  granted  the  order;  no  other  judge  out  of  court  had  the 
))ovver.  Ball  v,  Goodenough.  37  ILno.  Pr.  479  ;  Hatch  v.  Weyburn, 
^  Id.  1U3;  Smith  v.  Johnson,  7  Jd.  ;!9.  Now  tlie  appointment  must 
be  made  '"by  the  judge  to  whona  the  order  is  returnable"  {Code  of 
Civil  Proeedure,  §  2404),  As  to  whom  order  is  returnable,  see  Ibid. 
§  24:U. 

Tlie  order  must  be  a  chambers  order.  Ball  «.  Goodenough,  37 
So^w.  Pr.  479. 

The  appointment  cannot  be  made  after  the  proceedings  have  been 
diecontinued  by  a  failure  to  adjl^urn  them.  Wright  v.  Nostrand,  47 
Ji.  7.  Super.  (IJ  J.  &  S.)  441. 

Unless  the  proceedings  are  regularly  adjourned,  they  are  termin- 
ated and  jurisdiction  is  lost.  Ammidon  v.  Wolcott,  15  Ahh.  Pr. 
814;  Carter  v.  (Uarke,  7  Roht.  490;  Thomas  ».  Kircher,  15  Abb.  JV.  H. 
342L;  Bennell  v.  ilcGiiirc,  58  Barb.  025. 


CIVIL    PROCEDURE     REPORTS.  397 

Note  oil  Appointment  of  IJeceiveriii  Supplementary  Proceedings. 

Although  it  i.s  unusii.il  and  a  work  of  supererogation  to  appoint  a 
receiver  wliere  no  property  has  been  disclosed,  it  has  been  held  that 
the  judgment  debtor  cannot  object  to  the  appointment  of  a  receiver 
on  that  ground,  as  he  cannot  be  prejudiced  by  the  granting  of  sucli 
an  application  (Myres'  Case,  2  A/A  Pr.  476;  4  Paige,  574;  6  Id.  2'J; 
8  /'/.  508),  but  tlie  practice  is  not  to  appoint  a  receiver  unless  some 
property  has  been  disclosed. 

Wliere  the  only  property  disclosed  on  the  examination  was  exempt, 
Held,  that  the  application  must  be  denied.  Keiher  v.  Shipherd,  4  N. 
T.  Civ.  Pro.  275. 

It  is  no  objection  to  the  appointment  of  a  receiver  that  the  debtor 
has  no  property  other  tlian  an  equity  of  redemption  which  he  has 
always  been  willing  to  have  sold.  Bailey  v.  Lane,  15  A'ib.  Pr.  373, 
note. 

Where  the  examination  discloses  clioses  in  action  or  the  existence 
of  a  relation,  like  a  partnership,  rendering  probable  tliat  tiiere  may 
be  asset?,  the  appointment  may  be  made.  Webb  v.  Overmann,  6 
Alb.  Pr.  93.  AVhcre  the  examination  discloses  only  an  estate  of 
tenancy  by  curtesy  the  receiver  may  be  appointed.  Beamish  v.  Hoyt, 
2  liob.  307.  Or  an  equity  of  redemption  in  real  property.  B:iiley  v. 
Lane,  15  Alb.  Pr.  373  (n.) 

Wiiere  it  appears  doubtful  whether  a  third  person  examined  as 
debtor  of  the  judgment  debtor,  or  another  |x.'rson  is  indebted  to  the 
j\idgmeut  debtor,  a  receiver  should  be  appointed.  Corning  ».  Tooker, 
5  How.  Pr.  16. 

In  Bann  v.  Daly  (24  Hun,  556)  it  was  ?ield,  tliat  where,  upon  the 
examination  of  tlie  debtor,  it,  appears  th  it  lie  has  an  estate  in  land  as 
tenant  by  tiie  curtesy,  and  it  is  not  shown  that  an  execution  lias  been 
•issued  and  returmd  since  he  acquired  it,  the  proper  course  is  not  to 
appoint  a  receiver;  i)ut  the  creditor  should  be  rc(}uired  to  issue  an- 
other execution,  and  sell  the  estate  tiiereunder.  See  also  Finkey  v. 
Langdon,  13  iV.  Y.   \VceU>/  Dig.  384;   7/i  re  Englehart.  1  JSheldoii,  tli. 

Notice  of  application.  "  At  ka.st  two  days'  notice  of  Xhb  applica- 
tion for  the  Older  appointing  a  leceiver,  must  he  given  personally  to 
the  judgment  debtor,  uidess  the  judge  is  satisfied  that  he  cannot, 
witli  reasonable  diligence,  be  found  witliin  the  State,  in  which  case, 
the  order  must  recite  that  fact,  and  ni;iy  dispense  with  notice  or 
may  direct  notice  to  be  given  in  any  manner  wliich  the  judge  tliinka 
proper.  (Code  of  Civil  Procedure,  §  3465;  Strolin  v.  Epstein.  0  iV'.  Y. 
Civ.  Pro.  3();  :Moigan  v.  Van  Koimstamm,  1)  Bdli/,  355;  Wright  ». 
Nostrand,  47  K.  Y.  Super.  [15  J.  tt-5.J  441.)  But  where  llie  order  to 
attend  and  be  examined,  or  the  warrant  has  been  served  upon  the 
judgment  debtor,  a  receiver  may  be  appointed  upon  the  retmu  day 


'BDS  -CIVIL    I'ROCEDURE     REPORTS. 

Note  on  AppMintmcnt  of  IJeceiver  in  Supplementary  Proceedings. 

''tiiereof  or  at  llic  rIo«e  of  tlie  exnininatlon,  witliout  further  notice  to 
-him."     C6<ie  of  Civil  Procedure,  '§  2465. 

Where  upon    the  conclnsion  of  an  examination  of  a  jurlgmont 

•^del)lor  before  u  referee  and  upon  filingthe  testimony  taken  before  tli'e 

'referee,  a* receiver  of  the  judgment  d.-btor's  property  was  appointed 

■ftitliout  notice,^— B;7^.  that   the  order  was  irregular  and  must  be  set 

aside.    Stroiin  v.  Epstein,  Kvpi'a.     To  same  effect,  Todd  v.  Crooke,  4 

'■iSau'lf.  094;  Asldey  t.  Turner,  22  Run,  226. 

The  notice  tnust  be  given   notwithstanding  the  application  for* 
receiver  is  made  on  the  examination  of  a  third  person.  Morgan  v.  Van 
/"Kolinstamm,  dO  How.  Pr.  161. 

The  notice  of  the  application  must  be  personaUy  served  on  the 
judgment  debtor  unless  otherwise  ovdereii  {supra  ;  Barker  ».  Joiinson, 
4  Ahh.  Pr.  4;^.>;  Dows  v.  Noxon,  5  IIow.  Pr.  29;  Corning  t.  Tookcr, 
"^  1(1.  16;  Kemp  pi  Harding,  4  U.  178);  and  must  be  in  writing;  ft 
"verbal  notice  is  insufficient.     Ashley  «.  Turner,  2J  Man,  226. 

In  Sickels  r>.  Hanley  (4  Alb.  N.  C.  231,  Sup.  Ct.  4  Dept.  March, 
*78)  it  was  held  under  the  Code  of  Procedure  that  an  order  to  appear 
for  examination  before  a  referee  may  direct  the  debtor  to  appear  be- 
■fore  the  judge  on  the  Monday  followingthe  close  of  the  CYaminafion  ; 
and  notwithstanding  his  failure  so  to  appear,  a  receiver  may  be  thero 
'appointed  if  the  esjimination  discloses  a  proper  case  for  a  receiver. 

If  a  judgment  creditors' action  or  proceedings  supplementary  to 
•execution  are  pending  against  tlie  judgment  debtor  and  a  receiver 
has  not  been  appointed  therein,  notice  of  the  application  for  the  np- 
*I)oiutmeut  of  a  receiver  must  be  given,  in  such  a  manner  as  the  judge 
xlirects,  to  tlie  judgment  creditor,  prosecuting  it.  Code  of  Civil  Pro- 
yxdure,  §  2465. 

It  was  held  under  the  Code  of  Procedure  that  the  creditors  pro- 
Teedjng  against  the  judgment  debtor  were  entit-led  to  notice  of  the 
application  but  not  to  a  copy  of  the  examination  on  wliich  it  was 
-founded.  Todd  n.  Crooke,  4  Sandf.  094.  . 

Where  sucii  notice  isomitted  tiic  order  should  be  vacated.    Supm. 
^t.  Sp.  T.  N.  Y.  Co.,  Fraser  v.  Hunt,  N.  Y.  Daily  Reg.,  Dee.  fO,  1882. 
Extending   former  receiverships.      Only   ono  receiver  of  thu 
'property  of  a  judgment  d(  btor  can  be  appointed.   Cixle  of  Civil  Proce- 
dure, §  2460;   IJdstwick  ».  Menck.  40  JV.  F.  ^83;    rcvV  S.  C,  sub  nom. 
'Bostwick  V.  Beizer,  10  Al>b.  Pr.  107;  Myri<:k  v.  Seldon,  "6  Barb.  15. 
Where  a  receiver  of  the   |)ropertyof  a  judgment   de'otor  has  been 
■appointed,  the  judge,  instead  of  appointing  a  receiver,  "must  make 
an  order  extending  the  receivership  to   the  special  proceeding  before 
-him."     Code  of  Civil  Procedure,  §  2406. 

•   Such  an  order  4^1  vfs  to  the  jiidufment  creditf)r  the  snmo  rights  ae 
if  a  receiver  was  then  uppuinteU  upon  his  application;  including  the 


CIVIL    PROCEDURE    REPORTS.  390 

Note  on  Appointment  of  Receiver  in  Supplementary  Proceedings. 

■Tight  to  apply  to  the  court  to  control,  direct  or  remove  the  receiver, 

or  to  sul>ordinate  tlie  pioceedings  in  or  by  which  tlie  receiver  was 
appointed,  to  those  taken  under  his  judgment.      Code  erf  Okil  Proce- 

■dure,  §  2466. 

'  Where  a  receiver  of  the  judgment  debtor's  property  has  been  ap- 
•••pointed  in  supplementary  proceedings,  the  court  is  not  precluded 
•from  appointing  another  person   as  receiver  in  a  judgment  creditor's 

action,  if  in  its  discretion  it  sees  fit  to  do  so.  State  Bank' of  Syraeuse 
-T.  Gill,  23  Hun,  410. 

Filings  order.  ''An  order  appointing  a  receiver,  orextending« 
-rcci'ivership,  must  be  filed  in   tlie  office  Of  the  clerk  of  the  county, 

wherein  the  judgment  roll  in  the  action  is  filed;  or,  if  the  spefial 
•piooeeding  is  founded  upon  an  execution  issued  out  of  a  court,  other 
-than  in  wlricli  the  judgment  was  rendered,  in   the  office  of  the  clerk 

of  the  county  wherein  the  transcript  of  the  judgment  is  filed."  Cede 
*of  Civil  Procedure,  §  2467. 

As  to  phico  of  filiiTg  and  necessity  of  recording  order  before  en- 
•sactment  of  C«de  oi  Civil  Procedure,  see  Code  of  Proc^lure,  §  298; 
■'Laics  0/1813,  cliap.  86;  Wriglit  v.  Nostrand,  47  N.  T.  Super.  (15  J. 
v<f  S.)  441 ;  rcv'd  94  N.  Y.  81;  Ball  c.  Goodenough,  37  How.  Pr.  497;  . 
"Rockwell  V.  Merwin,  45  N.  Y.  166;  Scroggs  ■?>.  Palmer,  60  Barb.  005; 
'People  ex  rel.  Kingsland  v.  Palmer,  52  JV.  Y.  83;  McKenna  p.  Ed- 
'monston,   91    Id.  231;  Wiiipple  v.  Christian,  80  Id.  523;  Wright  v. 

Nostrand,  94  Id.  32;  Fredericks  «.  Niver,  28  IIu7i,  417. 

A  certified  copy  of  the  order  should  also  be  filed  with  the  clerk  of 
'^very  other  county  wherein  any  real   property  is  situated,  and  if  he 

resides  without  the  county  where  the  originnl^  order  is  tiled,  with 
'the  clerk  of  the  county  w^here  he  residtjs.  Code  of  Civil  Procedure, 
-§  2408. 

A  county  clerk  Avith  whom  the  order  or  a  certified  copy  thereof  is 
'"filed  must  immediately  note  upon  it  tl'.c  time  of  tiling  and  as  soon  as 
-practicable,  iiuist   record   it  in  a  book  to  be   kept  by   him  iiide.xtd  to 

the  names  of  judgment  debtors.   Id.  §  2470. 

Security.  Before  entering  upon  iiis  duties  the  receiver  mustex- 
-ecute   and  file  with  the  clerk  of  tltt3  court  where  the  proceedings  are 

pending  {Code  of  Civil  Procedure,  §  816),  a  bond  to  the  people  with 
'at  least  two  sufficient  sureties  in  a  pe'iialtyfixod  by  the  judi^e  making 

the  appointment;  condition  for  the  f;iithful  discharge  of  his  duties  as 
-receiver.    Co'.le  of  Civil  Procedure,  §  715. 

An  order  apjwinting  a  receiver  is  not  void  because  it  directed  that; 

a  bond  wit!)  one  surety  be  given;  it  may  be  amended  so  as  to  require 
*two  sureties  witliout  prejudice  to  proceedings  already  taken.  Holmes 

t.  McDorvell.  15  Rnn.  585;  alT'd^  76  .V.   Y.  596. 

The  filing  of  tiie  receiver's  bond  is  necessary  to  the  completion  of 


400  CiVIL     PllOC'KOURE     llEPORTS. 

Note  oa  Appointment  of  R(!ceiver  in  Suijpleraentniy  Proceedings. 

tlie  uppointment.  Banks  v.  Potter,  21  I/uw.  Pr.  469;  (loiiirer  o. 
Sands,  19  Id.  8;  Vooriiees  v.  Seymour,  26  Barl>.  569.  5«2;  Lottiuier 
V.  Lord,  4  E.  D.  Smith,  183;  West  v.  Fraser,  5  Suiulf.  653;  Wilson 
V.  Allen,  6  Barb.  543.  But  when  the  receiver  has  given  ample  security 
upon  his  first  appointment,  there  can  be  no  occasion  for  requiring 
him  to  give  securitj'  over  again  in  every  proceeding  whicii  may  be 
afterwards  instituted.  Banks  v.  Potter,  supra.  But  see  Conger  t. 
Sinds,  19  Id.  8. 

Tlie  Court  or  judge  making  tlie  order  by  whicli  the  receiver  was 
appointed  or  his  successor  in  office  may  at  any  time  direct  the  re- 
ceiver to  give  a  new  bond,  with  new  sureties,  with  the  like  condi- 
tion.  Id. 

It  is  discretionary  with  the  court  whether  to  require  a  receiver  to 
give  new  security  when  one  of  his  sureties  has  become  insolvent. 
Haulenbeck  v.  lleacock,  47  N.  T.  Super.  Ct.  533. 

The  bond  must  be  joint  and  several;  it  must  be  accompuinied  with 
tlie  affidavit  of  each  surety,  sul)joined  thereto,  to  the  ellect,  that  he 
is  a  resident  of,  and  a  householder  or  freeholder  within  the  8tiite,  and 
is  worth  the  penalty  of  the  bond,  or  twice  the  sum  specified  in  tlie 
undertaking,  over  all  tlie  debts  and  liabilities,  which  he  owes  or  has. 
incurred,  and  exclusive  of  property  exempt  bylaw,,  from  levy  and  Side 
under  an  execution  (Code  of  Clcil  Procedure,  §  812);  it  must  be 
acknowledged  or  proved  and  certified  in  like  manner  as  a  deed  to  be 
recorded  {Id.  §  810),  and  must  be  approved  by  the  judge  before 
•whom  the  proceeding  is  taken,  and  such  ap])roval  must  be  indorsed 
upon  the  bond  (Id.  §  81S).  The  receiver  need  not  join  in  the  bond 
{Id.  §  811.) 

In  Morgan  v.  Potter  (17  Hun,  403),  it  was  held  that  none  but  the 
judgment  debtor  couid  take  advantage  of  the  fact  that  the  bond 
lacked  a  seal.   See  also  Underwood  v.  SutclifT,  10  Htm,  453. 

Removing'  receiver.  The  couit,  or  the  judge  who  made  the  order 
appointing  the  receiver,  or  his  successor  in  office,  may  at  any  time 
rentovc  tlie  receiver  (Code  of  Civil  Procedure,  §  715);  but  before  the 
court  can  entert;dti  a  moticjn  for  the  removal  of  a  receiver  due  notice 
in  writing  must  be  given  of  the  motion,  helling  forth  the  grounds 
upon  whicii  the  removal  is  souttht.  Iliyh  on  Ikceiters,  §  824; 
Campbell  v.  Spratt,  5  iV.  T.  Weekly  Dig.  25;  Brunsr.  Stewart  Manfg 
Co..  31  Ilun,  195. 

An  order  removing  a  receiver  on  the  ground  that  his  appointment 
was  collusive  is  discretionary  and  not  appealable  to  the  court  of  ap- 
peals.    Connolly  v.  Kretz,  78  N.  T.  620. 

A  motion  to  set  aside  an  order  appointing  a  receiver  in  place  of 
one  rcs;gn<;d  is  properly  made  to  the  court.  Lippincott  v.  Westry, 
6  N.  Y.  Cic.  Pro.  74. 


CIVIL    PROCEDURE    REPORTS.  401 

McBIane  v.  Spfelman. 

Eflfect  of  appoiiitiueut  on  proceedings.  The  appointiiKMit  oi  u 
receiver  after  tlic  exiitninuiimi  lias  coiiliuued  fur  a  tinit-  d<)e.s  not  per 
se  operate  as  a  discontinuance  of  the  proceedings.  People  ex  rel. 
Fitch  V.  Mead,  29  How.  Pr.  3G0.  The  judge  does  not  by  the  np- 
poiutmeut  of  a  receiver  lose  jurisdiction  of  the  judgment  debtor  nor 
tl)e  authority  to  punish  a  contemi)t  on  the  part  of  such  debtor  in  re- 
fusing to  answer  on  further  examination  (Id.);  and  where  the  dei)tor 
fails  to  appear,  on  a  day  he  is  ordered  to  do  so,  a  receiver  may  at  that 
time  be  appointed  and  the  debtor  also  punished  for  contc-mpt. 
Sickels  e.  Haidey,  4  .1/^.  A\  C.  3;]l. 

Wliere  an  order  is  issued  restraining  a  third  person  from  disposing 
of  pro|X»rty  in  ids  possession  belonging  to  the  judgment  debtor 
•*  until  luriher  order  in  the  premises,"  an  oider  appointing  a  receiver 
is  such  furtlier  order;  it  is  tiie  liual  order  iu  the  proceedings,  and  any 
restraint  thereafter  desired  sh<»uld  be  inserted  in  tiiat  order.  Court 
of  Appeals,  April  1878,  People  ex  rel.  Morris  v.  Randall,  73  JV.  Y.  416. 


McBLANE  AS  Assignee,  etc.,  v.  SPEELMAN. 
SuPRi<a4E  Court,  Yates  County  Circuit,  June,  1884. 

§§  635  €t  seq.,  682. 

Attachment. — Questioning  valiility  in  coUnteral  action. — Assignment  for 
beuejit  of  creditors. —  When  complete. 

The  provisions  of  section  two  of  the  general  assignment  act  of  1877, 
requiring  an  assignment  for  the  benefit  of  creditors  to  be  recorded 
is  mandatory,  arid  title  to  the  assigned  |)roperty  does  not  pass  to  the 
assignee  until  it  is  recorded. 

The  sufficiency  of  the  affidavits  on  which  an  attachment  is  issued  ia 
not  a  jurisdictional  one  to  be  raised  to  a  collateral  action. 

Reniiiec.  Hean  ('Zi  Hun,  120);  Smith  v.  Boyd  (IS  iV.  Y.  Weekly  Dig. 
4til).  followed. 

{Decided  June,  1884.) 

Motion  to  dismiss  the  complaint  in  an  action  to  re- 
cover for  personal  property  seized  under  an  attach- 
ment, 

Vol.  yi.— 26 


402  CIVIL    PROCEDURE    REPORT&  , 

Mclilanc!  v.  Speelroan. 

Tbs  plaintiff,  as  assignee  for  the  benefit  of  creditors 
brought  this  action  to  recover  the  valne  of  certain  per- 
sonal i^roperty  seized  under  an  attachment  issued 
against  the  property  of  his  assignor  intermediate  the 
execution  and  acknowledgment  of  the  assignment. 

At  the  close  of  the  case  the  defendant  made  this 
motion . 

H.  II.  Slearn,  for  defendant  and  motion. 

Chapter  348,  Laws  of  1860,  and  chapter  466,  of  Lawe 
1877,  are  mandatory,  regarding  the  requisites  of  an  as- 
signment, and  no  title  to  the  assigned  property  passes 
-to  the  assignee  until  the  initial  or  essential  require- 
ments of  the  statute  are  complied  with.  One  of  these 
initial  and  essential  requirements  is  the  recording. 
Rennie  v.  Bean,  24  Bu/i,  128;  Smith  v.  Boyd,  18  JV.  Y. 
Weekbj  Di(/.  401 ;  Button  i).  L;)rentz,  45  N.  Y.  510.; 
Hardman  v.  Bowen,  39  Id.  196  ;  distinguished  82  Id. 
496;  Jarland  v.  Rathbone,  39  Id.  369;  Koyer  Wheel 
Company -y.  Fielding,  31  ^wtj,  274  ;  Loweryw.  Clinton, 
19  N.  Y^.Weekly  Dfr/. 19l\  Fairchild'y.  Gwynne,  16  Abb. 
Pr.  23  :  Cook  v.  Kelly,  14  Id.  466  ;  Keilli/  on  Assign- 
ments, 18-24,  118-121, 132  j  Burr  ill  on  Assignment,  20, 
21,  40. 

It  has  been  held  that  section  682,  of  the  Code  of 
Civil  Procednre  does  not  limit  persons  who  have  ac 
quired  subsequent  liens  upon  or  inteiest  in  attached 
property,  to  move  to  set  aside  attachment,  but  includes 
one  who  claims  under  a  voluntary  transfer.  Trow'e 
Printing  Co.  t.  Hart,  S^  N.  Y.  500. 

A  receiver  of  an  insolvent  national  bank  appointed 
after  the  issuing  of  an  attachment  against  it,  may, 
under  the  Code  of  Civil  Procedure  section  QS2,  move 
to  vacate  an  attachment  without  being  a  part}--  to  the 
action.  National  Shoe  &  Leather  Bank  v.  Mechanics' 
National  Bank,  89  N.  Y.  440  ;  Jacobs  v.  Hogan,  85  Id. 
243.      Even  when    there  was  an  irregularity  in  the 


UTYTL    PUDCEDTTRE    REPOHTS.  40a 

M^Blnne  f>.  Speelman. 

jtidgment  upon  which  the  motion  to  vacate  the 
Htrachnrent  was  made,  the  court  held  the  judgment 
sufficient  to  confer  Jurisdiction  until  set  aside.     Stu- 

■ben  Co.  Bank  v,  Aiberger,  78  N.  Y.  252.  After  the 
inoceeds  had  been  applied,  plaintiff  and  the  assignors 
are  too  late  tomove  to  vacate  or  modify  {Oode  Civil 

•Pro.  §  GS2).    The  reading  of  this  section  would  seem  to 

"be  all  sufficient,  but  even  this  section  has  been  con- 

•'strued  in  cases  othf^r  than  those  already  cited.  Vide^ 
Woodmansee  «.  Rogers,  82  N,  Y.  88 ;  Parsons  •©, 
Spragne,  8  N.  Y:  Civ.  Pro.  390  ;  Market  Nat.  Bank  v, 

•/Pacilic  Nat.  Bank,  30  Han,  50. 

The  attachment  stands,  whether  good  or  bad  origin- 

-ally,  and  cannot  now  be  disturbed  in  that  proceeding 
or  in   this.      Denman  v.  McGuire,  17  JV.    Y.  WeeJdy 

'Big.  504,  and  cases  cited  ;  Stevens  v.  Middleton,  14  Id. 
126.  An  attachment  may  be  amended  and  in  this  way 
existing  defects  cured.     Kibbe  v.  Wetmore,   31  Hun., 

-424. 

The  judgmemt  may  be  proven  to  show  that  plaintiff's 
claim,  in  the  attachment  proceeding,  is  a  valid  and 
existing  claim.  Rincheyy.  Stryker,  28  N.  Y.  45  ;  Cofiin 
V.  Stitt,  19  N.'Y.  Weekly  Dig.  22,  23  ;  Cribbins??.  Freer, 

-93  N.  Y.  93  ;  Shoemaker  v.  Spencer,  54  Id.  36G  ;  Carr 
7).  Yan  Hoesen,  26  Hun,  316.     Should  it  be  held  that 

..plaintiff  can  raise  that  question  collaterally  in  this  ac- 
tion, then  it  is  urged  that  the  county  judge  had  juris- 
diction to  issued  the  warrant.     Conkling  t.  Dutcher,  5 
■  How.  Pr.  386 ;  Kissock  v.  Grant,  34  Barb.  144. 

The  granting  of  the  attachment  is  greatly  a  matter 
of  discretion,  and  if  granted  upon  any  facts  at  all  it 
should  not  be  disturbed.  Ruppert  v.  Haag.  1  N.  Y.  Cic. 
Pro.  411  ;  Allen  v.  Meyer,  73  li.  Y.  1  ;  Van  Alstine  v. 
Errwine,  11  Id.  340  ;  Lamkin  v.  Douglas,  27  7/^^;?.,  517; 
Crandall  v.  McKay,  6  Id.  483. 

The  answer  in  this  case  sets  up  the  attachment,  and 
•acts  done  by  virtue  of  it  as  a  justification,  and   th« 


404  CIVIL    PROCEDURE    REPORTS. 

McBhinc  ».  S-peeiman. 

defense  is  a  good  one.  Duy  v.  Bench,  87  iV".  Y.  57; 
Jacob  V.  Hogaii,  85  Id.  243 ;  Rinchey  v.  Sfryker,  28  Id. 
45  ;  Hall  v.  Stryker,  27  Jd.  596  ;  Hull  v.  Muiiger,  5  Lans. 
102 ;  Miller  v.  Adams,  7  M.  184  ;  Brown  v.  King,  11 
Hun,  250;  aff'd,  75  N,  Y.  (30.9;  SaTacool  v.  Bough  ton, 
6  Wend.  170;  McGuire  v.  Herrick,  6  Id.  240;  Peo- 
ple V.  Warren,  5  Hill,  440. 

/.  JEJ.  Bean,  for  plaintilT,  opposed. 

Angle,  J. — By  section  1  of  the  assignment;  act  of 
IvSOO  (Laws  of  1860,  p.  594),  it  is  enacted  that  assign- 
ments shall  be  in  writing,  shall  be  acknowledged  and 
the  certificate  of  acknowledgment  indorsed  thereon 
before  delivery  to  the  assignee.  Sections  providing 
for  the  inventories,  or  schedules,  and  their  verilication  ; 
section  3  for  the  giving  of  a  bond  by  the  assignee  ;  sec- 
lion  4  for  an  accounting ;  sections  for  compelling  an 
assignee  to  i)erform  decrees  and  orders;  and  section  6, 
requiring  an  assignment  to  be  recorded,  appear  to 
have  been  regarded  as  directory  only. 

Chapter  466,  Laws  of  1877,  p.  543,  repeals  §  28  of 
the 'above,  act  of  1860,  and  makes  a  more  detailed 
system.  It  is  entitled  "  An  act  in  relation  to  the  assign- 
ments of  the  estate  of  debtois  for  the  benefit  of  credit- 
ors." Section  1  simply  provides  that  the  act  may  be 
cited  as  the  general  assignment  act  of  1877.  Section  2 
en:u:ts  that  assignments  shall  be  in  wriring,  shall  be 
<hily  acknowledged,  and  shall  be  recorded  in  the  county 
clerk's  office  of  the  county  where  the  debtor  resided  or 
carried  en  business  at  the  date  of  the  assignment. 

Another  sentence  in  the  same  section  i)rovides  that 
when  real  property  is  assigned  which  is  situate  in 
another  connty  than  the  one  in  which  the  original 
assignment  is  required  to  be  recorded,  a  certified  copy 
of  such  assignment  shall  be  filed  and  recorded  in  the 
county  where  such  proy)erty  is  situated. 


CIVIL    PROCEDURE    REPORTS.  405 

McBlane  v.  Speelmnn. 

The  concluding  sentence  of-  the  section  declares 
that  the  assent  of  the  assignee,  subscribed  and  ac- 
knowledged by  him,  shall  appear  in  writing,  em- 
braced in,  or  at  the  end  of,  or  indorsed  upon  the  as- 
signment, before  the  same  is  recorded,  and  if  separate 
from  the  assignment",  shall  be  duly  acknowledged. 

The  attachment  under  which  the  defendant  levied 
upon  the  property,  was  issued  intermediate  to  the 
writing  and  acknowledgment  of  the  assignment,  and 
the  question  is  presented  whether  the  recording  of 
the  assignment  is  requisite  to  give  title  to  the  assignee 
in  a  case  where  he  has  taken  actual  possession  before 
it  is  recorded  ?  All  the  provisions  in  section  2  are  cer- 
tainly not  prerequisites  to  the  assignment  becoming 
effective,  especially  the  one  requiring  a  certified  copy 
to  be  tiled  and  recorded  in  another  county  when  there 
is  real  estate  situate  in  such  county.  But  for  this 
statute  the  assignment  would  have  been  sufTicienti 
without  recording  or  acknowledgment  by  the  assignor. 
One  author  appears  to  have  been  of  the  o[)inion  that 
under  the  act  of  1860,  the  title  passed  to  the  assignee 
from  the  date  of  the  recording  {Kellhj  on  Assir/n^ 
ment,  118-121).  The  opinion  of  the  general  term  in 
Rennie  z).  Bean,  24  Hun,  126,  is  directly  to  the  point 
that  the  provision  in  regard  to  recording  is  raanda- 
toiy,  and  compliance  with  it  is  requisite  to  a  valid 
assignment.  And  such,  too,  seems  to  have  been  the 
opinion  of  the  New  York  common  pleas  in  Smith  v. 
Boyd,  18  N.  Y.  Weekly  Dig.  401,  462,  and  my  de- 
cision in  the  present  case  must  conform  to  such 
opinions.  Tlie  counsel  for  the  plaintiff,  however,  in- 
sists that  the  affidavit  on  which  the  warrant  of  attach- 
ment was  issued  was  not  sufficient  to  give  jurisdiction 
to  the  officer  who  issued  it.  The  affidavit  is  defective, 
and  would  not  for  a  moment  stand  against  a  motion 
made  at  the  proper  time  to  st^t  the  attachment  aside  ; 
4:)Ut  the  sufficiency  of  the  affidavit  on  which  the  attach- 


406  CIVIL    PROCEDURE    REPORTS: 

Kek  V.  Khode. 

meiit  is  issued  is  not  a  jurisdictional  question  to  be- 
raised  in  a  collateral  action  (Matter  of  Griswold,  13r 
Barh.  412  ;  .Carr  v.  Van  Hoesen,  26  Hun,  316).  I  am,_ 
therefore,  unable  to  concur  with  plaintiff's  counsel  as- 
to  his  right  here  to  raise  the  question  on  the  affidavits. 
Deleadant  must  have  judgment  in  his  favor. 


REIS    ET   AL.,   Respondents,   «.   RHODE  et    al.,. 
Appellants. 

Supreme   Court,   Fourth   Department,   General. 
Term,  June,  1«84. 

§§;  603,.  et  seq.,  1948^  et  seq, 

Il^netion. — Power  ef  court  to  grant,  restxaining  iuterfyrenee  with  acting^ 
trustees  of  religious  eorporatinn  hy^  rival  claimants  of  tht 
opice. —  When  granted. —  Determination  of  titles^  of 
claimants  to  office  of  trustees  of  rcligiout 
eorporatiwis. — Prima  faeie  evi- 
dence of  election. 

Thft  title  cf  xival  clnimanls  to  tlie  office  of  trustee  of  a,reli<;iou3  cor-' 
poratioii  caiinot  be  deterraiueil  ia  an  equitable  actiou  brou<;lit  l>y 
one  claimant  or  set  of  claimants  against,  another  elaimant  or  set  of  ■ 
claimants ;[*]  the  remec}}  ia  by  an  action  brought  by  tUe  attorney ; 
general  in  the  naou;  of  the  peo|)le.[*] 

The  supreme  oourt  bus  jurisdiction  ta  restrain  tliosc  claimjuu  to  be 
the  trustees  of  a  reiifjio«s  corporation  out  of  possession, — in  an.- 
action  bronj^lit  by  rival  clainumts  to  the  office  in  possession, — Ironj . 
interferinf;  with  the  }>roperty,  records  and  seals  of  tlui  corporaiiiu. 
in  the  posses-sion  of  acting  trustees,  until  the  claimants  out  of  pos- 
session establish  their  title  to  the  trusteeship  in  an  action  brought 
for  t'-at  purpose.!"] 

A  ctrliticate  of  the  eleetioa  of  trustees  of  a  religious  eorjxjration  is- 
nor  vrimn  facie  evidence  of  their  election  unless  it  is  signed  by  both 
of  the  officers  who  presided  at  the  election. ['] 

Where  pcrsous  clulming.to  have  beea  elected  and  acting,  as  trusteea.< 


GIVIL    PRO-CEDURE     REPORTS.  407 

Rois  «.  Rliodc. 

of  a  rt'ligioiis  corporation  ;ire  roco^nized  as  sucli  by  the  reli;»iou8 
erganiziition  and  by  a  inajoiity  of  tliose  in  ofiioe  at  the  time  of  tlie 
election,,  rival  claiuiauLs  to  the  office,  not  liaving  statiiiory  evi- 
dence of  tlieir  election,  slioaUl  be  enjoined  from  interfering  with 
them  uinil  the  de term i nation  of  their  legal  rights  in  the  proper 
foi  urn.["",'J 

People  p.  Mattier  {2  Abb.  JSf.  8.  239);[«]  People  v.  Conkling  (5  //«/», 
'15:i);[''J  Mickles  w.  liocliecter  City  Bank  (11  Faigc,  118);[''j  Tap- 
pan  V.  Gray  (3  Edx.  Hk.  452);['J  Mayor  «.  Conover  (5  Abb.  Pr. 
i71);['J  MtjttB.  Conaaliy  (50  Barb.  51(!);['l  Couiter  e.  Murray  (15 
Abb.  N.  S  130) ;[ 'J  Morris  ».  Whehin  (11  Abb.  N.  C.  64;  S.  C,  04 
Hoio.  Pr.  100);['J  Palmer  v.  Foley  (14  How.  Pr.  308);[']  distin- 
guisiieil.  Johnson  ».  Jones  (23  N.J.  Eq.  310);L*j  Featherstone  v. 
Cook  (/:.  II.  10  Eq.  298);[«]  Lutheran  Ev.  Ch.  v.  Gristgan  (34 
WUc.  3-28);[»-|  Evving  v.  Thompson  (43  Pa.  St.  373);['»j  followed. 

{Xecidcd  Octvber,  1884.). 

Appeal  from  order  Onondaga  special  term  denying 
morion  to  vacate  injanction  which  restrained  the  de- 
fendants until  the  furtlier  order  of  the  conrt  from  in 
any  way  interfering  with  the  plaintiffs  in  the  use, 
enjoyment  and  possession  of  the  clmrch  edifice  or 
interf.-ring  with  the  individual  plaintiff  in  acting  as 
trustees,  and  also  restraining  defendants  from  acting 
as  trnstees. 

This  action  was  brouglit  by  Herman  Reis,  Jr.,  and 
otliers  claiming  to  be  trustees  of  the  Evangelical 
Lutheran  Church  of  St.  John,  to  obtain  an  injnnction 
restraining  the  defendants,  who  also  chiini  to  be  trus- 
tees of  said  church,  from  interfering  with  their  posses- 
sion and  use- of  tlie  c-hurch  property,  and  from  acting 
as  trustees.  The  church  was  made  a  party  plaintiff. 
Further  facts  are  stated  in  the  opinion. 

Goodelle  &  Not'uigJiam,  for  defendants-appellants. 
Lewis  Marshall,  for  plaintiffs  respondents. 


408  CIVIL    PROCEDURE    REPORTS.' 

Heia  V.  Rhode. 

Merwix,  J. — The  imnibHr  of  the  trustees  of,  the  cor- 
poration plaiiitiflf  was  seven.  Prior  to  December  18, 
1883,  the  offices  of  four  of  them  had  been  judicially 
declnred  vacant.  The  office  of  one  more  expired  Jan- 
uary 1,  1884.  For  the  purposes  of  tilling  these  va- 
cancies existing  and  to  exist,  an  election  was  in  prop- 
er form  called  for  December,  18,  1883.  Two  elders 
were  chosen  as  presiding  officers,  and  they  under  the 
statute  were  the  persons  to  certify  as  to  the  result  of 
the  election.  Tlie  defendants  claim  they  were  elected, 
and  one  of  the  presiding  officers  so  certifies. 

The  plaintiffs,  Reis,  Korb,  Wigand  and  Schwartz, 
claim  that  they  and  one  Oswald  were  elected,  and 
one  of  the  presiding  officers. so  certilies. 

Under  the  statute^  both  presiding  officers  must  join 
in  the  certificate  in  order  to  furnish  to  the  party  the 
prima  facie  evidence  of  election  that  the  statute 
provides  for.  So  that  in  the  present  case  neither  party 
has  the  statutory  evidence  of  election. 

The  defendants  base  their  claim  upon  the  fact  that 
they  were  orally  declared  elected.  Still  the  force  of 
such  declaration,  if  there  was  one,  depends  upon  the 
surrounding  circumstances,  about  which  there  is  a  dis- 
l)ute,  and  it  is  not  what  the  statute  m-^X^es  prima  facie 
evidence. 

Both  sides  concede  that  the  question  as  to  who  in 
fact  were  elected  cannot  be  tried  in  this  action.  That 
being  so,  will  this  court  by  injunction  control  the 
possession  % 

Of  the  three  in  office  at  the  date  of  the  election  one 
was  the  plaintiff  Reis,  Avhose  term  expired  on  Jan- 
uary 1,  1884,  and  who  claims  to  have  been  re-elected 
and  who  would  hold  over  in  case  there  was  no  elec- 
tion. Of  the  other  two,  one  sides  with  the  plaintiff, 
ftud  the  other  with  the  defendant.     The  pastor  of  the 

*La\vs  of  1813,  chap.  GO,  §§  3,0. 


CIVIL    PROCEDURE    REPORTS.  409 

Reis  V.  Rhode. 

society,  the  vestrymen,  and  one  of  two  elders  recog- 
nize the  plaintiff  us  properly  elected.  So  that  it  is  to 
be  assum«Kl  that  the  religious  organization  sides  with 
the  phiin tiffs.  The  question  then  would  be  whether, 
in  the  absence  of  the  statutory  evidence  of  elec- 
[']  tion,  tliut  party  w.hich  is  recognized  by  the  relig- 
ious organization  and  by  the  ninjority  of  tliose  in 
office  at  the  time  of  the  election  shonld  not  also  be  le- 
cognized  by  the  courts  until  the  determination  of  the 
legal  right  in  the  i)roper  fornm. 

Were  the  election  entirely  invalid,  or  had  there 
been  no  election  at  all,  the  control  by  the  trustees 
then  in  office  would  have  been  substantially  as  the 
pbiiniilfs  now  desire  it  to  be.  The  main  object  of  a 
religious  corporation  is  the  religions  cnlture  of  the  so- 
ciety connected  with  it  ;  and  that  will  be  better  sub- 
served by  harmony  between  the  religious  and  temporal 
organization. 

This  seems  to  beii  case  calling  for  equitable  inter- 
ference (2  High  on  Injunction,  §  31.5  ;  Kerr  c.  Trego, 
47  Pa.  St.   292-296;  Lutheran  Ev.  Ch.  v.  Gristgan,  34 
Wise.  328,  336)  ;  not  on  the  ground,  as  stated  in  the  in- 
junction order,  that  the  individual  plaintiffs  were 
["]     duly  elected,  but  on  the  ground  that  they  were 
recognized  by   the  authorities  then  existing — tem- 
])oial  and  spiritnal — and  shonld  not  be  interfered  with 
by   those  not  having  statntoiy  evidence  of  election, 
and  not  having  their  right  established  at  law.     As  was 
said  in    Kerr  v.  Trego,   the  (U)n fusion  that  would  be 
caused  by  two  opposite  parties  pretending  to  act  as 
the  society  should  be  stayed. 

It  follows  that  the  order  appealed  from  should  be 
affirmed. 

FoLLErr,  J. — [Concurring.]— The  title  of  rival 
claimants  to  the  office  of  trustee  of  a  religions  corpor- 
ation cannot  be  determined  in   an  equitable  action 


410  CIVIL    PROCEDURE    REPORTS) 

lieis  v.  lliiode. 

[*j  brought  by  one  claimant  or  set  of  claimants 
a<;ainst  another  claimant  or  set  of  claimants. 
The  remedy  is  by  an  action  brought  by. the  attorney 
general  in  the  name  of  the  people  {Code  Cio,  Pro.: 
§^  1948-1056,  1984 ;  Ilartt  n.  Ilurvey,  32  Barb,  do  ;  The 
North  Baptist  Church  v.  Parker,  'SQ  Id.  171).  Such  is* 
the  rule  in  resi)ect  to  all  contested  corporate  election* 
except  as  it  is  otherwise  provided  by  statute  (People- 
'Oi  A.  &  S.  R.  K  Co.,J57  iY:  ¥.  IGl,  171,  172.) 

This  action  was  not  brought  to  determine  the  title* 
of  the  rival  claimants  to  the  trusteeshiijs,  but  to  restrain 
the  defendants  who  are  out  of  [)0ssessi<jn  from  forcibly- 
divesiing  the  plaintiffsof  their  possession  of  the  proi>- 
erry  and  records  of  tiie  corporation.  No  Ciise  has  been, 
cited  in  which  the  courts  of  this  State  have  determined 
whether  an  injunction  may  be  issued  for  this  purpose. 
People  V.  Mattier  {2..Abb.  N.  S.28d),  and  Peoi)le  v.. 
[']  Conkling  (5  Iltin,  4.")2),  relied  upon  by  the  defend- 
ants, hold  that  trustees  de  facto  of  corporations 
will  not  be  restrained  from  continuing  to  act  as  trustees 
during  the  pendency  of  actions  to  try  their  title  to  the 
trusteeships.  Peoide  ??.  Mathei*  arose  out  of  a  contest  for 
tile  control  of  the  New  York  State  Inebriate  Asylum, 
and  People  v.  Conkling  arose  out  of  a  contest  over  the 
control  of  a  savings  bank.  Mickles  v..  Rochester 
[']  City  Bank  (llPa/^e,  118),  holds  that  acting  trustees 
of  a  manufacturing  corporation  will  not  be  re- 
strained from  acting  because  the  validity  of  their  elec* 
tion  is  questianed  in  a  suit  by  a  stockholder  to  wind  up 
the  c«ri)oration,  especially  when  it  is  not  alleged  that 
thQ  trustees  are  irresponsible,  or  tliat  they  are  wasting 
the  property  of  the  corporation. 

The  rule  that  acting  trustees  will  not  be  restrained 
from  continuing  to  act  at  the  suit  of  rival  chiimants 
out  of  possession,  affords  no  support  to  the  defendants' 
contention  that  the  court  is  without  })ower  to  restrain 
claimants  out  of  possession  from  interfering  with  the 


eiYIJj    PROCEDURE  .  REPORTS.  411 

Reis  V.  liliode. 

Property  of  the  corporation  in  the  possession  of  acting; 
claimants. 

Tappan   v.   Gray,    3  Bdw.    Oil.   452 ;    rev'd  ^^ 
[']     Paige,  507  ;   aff' cl  7  Hill,  259  ;  Mayor  c.  C.uover, . 
5  Ahh.  Pr.  171;   Mott  v.  Connally,   m  Barb.  516^ 
Goulter  o.  Murray,  15  Abb.  N.  >S^.  123 ;    Morris  v.  Whe- 
liin,  11  Abb.  N.  C.  64  ^  S.  C.„  64  How.  Pt.  109  ;  and  Pal- 
mer V.  Foley,  44  Uoio.  Pr.  808 ;  alf'd,  36  iV.  Y.  Super. 
(4  /.  c&  8.)  14  ;  S.  C,  45  Ilow.  Pr.  110,  all  arose  ont  of '. 
eontest,  for  manicipal  offices,  and,  with.. the  exception, 
of  Palmer  v.  Foley,  all  hold  that  claimants  of  munici- 
pal offices  will  not,  in  suits  brought  by  rival  claimants, , 
be  enjoined  from  acting.     These  cases  have  little  bear- 
ing upon  the  question  now  presented. 

The  policy  of  this  State  has  been  not  to  permit  cit- 
izens to  control  the  actions  of  public  officers  by  suits  • 
brought  in  their  own  name  or  interest,  .except  pursu- 
ant to  enabling  statutes.  Religious  corporations  are 
in  no  sense  governmental,  and  cannot  be,  under  our 
constitution. .  Such  corporations  consist  of  their  mem- 
bers who  own  andy  through  their  trustees,  control  the - 
property  (Robertson  ?;.  Bullions,  11  N.  Y.  243;  Gram 
@.  Prussia,  &c.  Society^  36  Id.  161). 

The  chief  distinction   between  such   corporations 
and  business  corporations  is  that  there  are  no  stock-- 
holders,  and  that  they  are  organized  not  for  jprolit  but 
for  the  improvement  of  society.     They  are  subject  to 
the  control  of  their  members  like  private  corporations. . 

In  New  Jersey,  where  it  is  held,  as  in  this  State, . 
that  a  court  of  equity  is  without  jurisdiction  to 
["]     determine  the  rights  of  rival  claimants  to  offices 
in  corporations,  it  was  said  (Johnson  v.  Jones,  23- 
iV.  J.  Eq.  210,  226),  "  If  the  question  of  the  legality  of 
an  election,  or  whether  a  certain  person  holds  such  an  . 
office,  arises   incidentally   in   the  course   of  a  suit  of 
which  equity  has  jurisdiction,  that  court  will  inquire 
into  and  decide  it  as  it  would  any  other  question  of. 


412  CIVIL    PROCEDURE    REPORTS, 

litis  T.  Illiode. 

lavs'  or  fiict  that  arises  in  the  cause.  But  the  decision 
is  oiily  for  the  purpose  of  the  suit ;  it  does  not  settle 
the  right  of  the  office  or  vacate  it  if  the  party  is  iu 
actual  possession.'" 

The  ca.s(i  hisl  cited  was  brouglit  l\y  a  railroad  cor- 
poration and  several  of  its  directors  to  restrain  persons 
claiming  to  be  directors  from  interfering  with  the 
property  of  the  corporation,  in  which  an  injunction  was 
grunted  and  sustained. 

In  Featlierstone  v.  Cooke  {L.  R.  16  Eq.  298),  it  was 
held  that  the  existence  of  disputes  between  ineni- 
[']     bersof  the  governing  bod.y  of  a  comi)any,  prevent- 
ing its  affairs  from  being  carried  on  properly,  is  a 
sufficient  ground  for  an  injunction  restraining  directors 
out  of  possession  from  interfering  with  the  property  of 
tile  corporation  in  the  possession  of  acting  directors. 
In   Lutheran  Evangelical  Church   v.    Gristgan   (34 
Wise.  328),  this  question  is  fully  discussed,  and  it. 
£"]    is  held   that  an  action  in  equity  to  restrain   the 
actions  of  claimants  to  trusteeships  whose  title  to 
office  is  contested  may  be  maintained. 

In  Ewing  Z5.  Thompson  (43  Fa.  St.  372,  379),  an 
£"]  injunction  restraining  a  claimant  of  the  office  of 
sheriff  who  was  out  of  possession,  from  interfering 
with  a  claimant  of  the  office,  who  was  in  i)ossessi<)n, 
was  granted  and  sustained,  j^ending  the  determination 
of  an  action  at  law  to  determine  who  was  legally  ele(rt- 
ed.  In  Kerr  v.  Trego  (47  Fa.  SI.  292),  the  doctrine  of 
the  last  case  was  again  asserted.  It  was  said,  ''If  a 
private  partnership  or  corpoiation  were  to  fall  into  a 
similar  confusion,  affecting  all  its  members  and  all  its 
creditors,  we  can  think  of  no  better  remedy  than  this 
(an  injunction)  for  staying  the  confusion  that  would 
be  caused  by  two  opposite  parties  pretending  to  act  as 
the  society.  It  is  the  very  remedy  usually  adopted 
when  churches  divide  into  parties,  and  we  ai)i)lied  it 
in  three  such  cases  in  Ihe  last  year.     TheieLu  we  de- 


CIVIL    PROCEDURE    REPORTS.  413 

Reis  V.  Rliode. 

cided  directly  on  rights  of  property,  because  that 
became  the  aim  of  dispute.  Here  we  must  decide  on 
the  right  to  public  functions,  because  that  is  here  for 
the  purpose  of  the  dispute.  The  main  question  in  all 
such  cases  is  regularity  of  organization,  and  the  right 
to  functions  and  property  is  a  mere  consequence  of 
this.  May  one  of  the  conllicting  bodies  or  the  mem- 
bers of  it  maintain  this  action  (an  equitable  one  for  an 
injunction)  against  the  other?  We  think  they  may. 
This  could  not  be  doubted  in  relation  to  private  cor- 
porations and  partnerships.  But  it  is  argued  that  in 
relation  to  public  corporations  the  attorney  general 
alone  can  file  such  a  bill.  We  do  not  think  so.  It  is 
right  for  those  to  whom  public  functions  are  intrusted, 
to  see  that  they  are  not  usurped  by  others.  Either  of 
these  bodies  has  the  right  to  demand  of  the  courts 
that  it  and  the  interests  of  the  public  alleged  to  be 
committed  to  it  shall  be  protected  against  the  usurpa- 
tion of  others  "  (47  Pa.  29G). 

The  Pennsylvania  cases  go  further  than  the  cases 
in  this  State  in  asserting  the  jurisdiction  of  a  court  of 
equity,  and  much  furtlier  than  is  jiecessary  to  sustain 
the  jurisdiction  of  this  court  over  this  case. 

The  (Vise  last  cited  distinct]}^  asserts  the  juiisdiction 
of  a  coui't  of  equity  to  control  the  action  of  contend- 
ing trustees  of  churches  and  piivate  corporations. 

A  legal  action  in  a  court  of  law  is  the  appropriate 
mode  of  determining  the  I'iglit  of  |)Ossession  or  title 
of  rival  claimants  to  real  propeity  ;  but  when  a  claim- 
ant out  of  possession  threatens  waste,  or  an  irreparable 
injury,  a  chiimant  in  possession  may  maintain  an  ac- 
tion to  restrain,  and  in  such  and  like  cases  the  right  of 
possession  or  title  may  be  determined  in  so  far  as  it 
may  be  necessary  to  determine  the  action. 

If  tills  court  has  not  jurisdiction  of  such  an  action 
with  the  power  of  restraint,  the  seal,  records,  tempor- 
alities and  franchises  of  such  corporations  are  exposed 


114  €iyiL    PROCEDURE    REPORTS. 

Feely  c.  Manhattan  R.  Co. 

to  the  hazards  incident  to  frequent  and  perhaps  violeftt 
thanges  in  possession  ;  the  control  finally  resting  with 
the  chnniants  possessing  the  most  temerity,  physicjil 
force  and  pertinacity,  and  tlms  exposing  to  destriic- 
tir)!),  by  the  fends  of  contending  claimants,  the  rights 
cf  individual  corporators  and  every  interest  which  the 
forporarion  was  organised  to  promote,  besides  engen- 
tlering  a  multiplicity  of  suits. 

We  think  this  court  has  jurisdiction  to  restrai-n 

ihexlaimants  of  trusteeships  outof  possession  (in 
['*]    an  action  brought  by  a  religious  corporation  and. 

the  trustees  in  possession)  from  interfering  with 
1  he  property,  records  and  seal  of  the  corporation  in 
the  possession  of  acting  trustees  nntil  the  claimants 
out  of  possession  establish  their  title  to  the  trusteeship 
in  an  action  brought  for  that  purpose.  To  this  ex'tefiti 
'  the  injunction  in  this  case  should  be  sustained. 

-Hardin,  P.  J,,  concurred. 


FEELY,  Respondent,  v.  THE  MANHATTAN  RAIL- 
'WAY  COMPANY,  I^ipleaded,  etc.,  Appellants. 

Superior  Court  of  ttie  City  of  New  York,  Gen- 
eral Teri^,  December,  1884. 

§531. 

BVl  of  •partmthrs.^- Ill  stance  of  caite  in  xcldch  tyrdered. 

Where,  in  nn  artion  ngninat  an  elevated  rrfilroad  company  for  damajifM 

'  to  real  propt.Tty  of  the  jjl.tinfiff  by  tin.'  conHtrnction,  maintenance 

'and- operation  of  the  road,  tlui  answer  allcj^ed  a?  a  defense,  "that 

the  j)laintifT  is  barred  by  his  own  negligence,  acquiescence  and  the 

lapse  of  tVme  fromtnaintaining  this  action,"— i7<7<Z,  on  appeal  tliat 

an  order  requiring  the  defendant  to  furnish  a  bill  of  particulars  of 

this  defense  should  be  affirmed, 

{Decided  Deeerhler  I,  1884.) 


CIVIL    PROCEDTJilE    REPORTS.  '415 

Feely  o,  Manhattan  R.  Co. 

Appeal  from  order  requiring  defendant  to  serve 
i>ill  of  particulars. 

Tills  acxion  was  bro«glit  against  the  Manhattan 
Hallway  Company  as  lessee  and  the  Metropolitan  Ele- 
vated Railway  Company  as  owner  of  the  Second  Ave- 
inie  Elevated  Railroad  in  the  city  of  New  York,  by  one 
owning  real  j^roperty  fronting  upon  Division  street 
in  '  said  city,  for  damages  to  such  property,  and  its 
easements,  by  the  defendant/ s  construction,  maintain- 
ance  and  operation  of  their  elevated  railway  through 
said  street.  The  answer  of  the  Manhattan  Railway 
Company  contained  thefollowing  defense,  with  others: 
*'And  for  a  tenth  defense  this  defendant -alleges  :  that 
this  plaintiff  is  barred  by  his  own  negligence,  acquies- 
vjcence  and  the  lapse  of  time,  from  maintaining  this 
action." 

The  plaintiff  moved  for  a  bill  of  particulars  of  this 
defense  en  an  affidavit,  the  material  part  of  which  was 
as  follows  :  "I  know  of  no  acts  or  omissions  whereby 
1  have  manifested  any  acquiescence  in  or  been  guilty 
of  any  negligence  in  regard  to  the  Cfrnstruction  -and 
operation  of  the  defendant's  railway  in  Division  street, 
or  whereby  I  am  barred  from  maintaining  this  actioa; 
and  I  am  advised  by  my  said  counsel  and  I  verily 
believe  that  1  shall  be  greatly  embarrassed  and  im- 
peded uix)n  the  trial  of  this  action  unless  I  am  fully 
informed  of  the  axjts  and  omissions  referred,  to  in  t\m 
allegations  in  the  tenth  defense  in  tlie  answer  of  sard 
defendant  as  barring  me  from  maintaining  this  action 
by  my  own  i>egligence,  acquiescence  and  the  lapse  of 
time."  A  bill  of  particulars  was  ordered  by  Judge 
TiiUAx,  and  the  defendant  appealed. 

William  A.  Dner,  for  defendant-appellant. 
The  affidavit  is  insufficient.  Orvis  v.  Dana,  1  Abb.  JV, 
<C.268.    This  is  a  fishing  expedition.    Higginbotham  t). 


41G  CIVIL     Prj)CK!)UUI<:     KKPOUTS. 

Corn  well  c.  D:ckt:l. 

Green,  25  Hun^  21G  ;  Gee  v.  Clinse  Maimractuiing  Co., 
12  Id.  G3() ;  Work  v.  Fair,  5  Roht.  694.  A  gerjeral  aver- 
ment of  negligence  is  sufficient.  Oldlicld  v.  N.  Y.  C. 
&  H.  11.  R.  Co.,  14  N.  r.  310;  Knowlton  t;.  Western 
R.  R.  Co.,  15  Id.  444. 

Boger  Foster,  for  the  plaintiff-respondent, — Cited  : 
D Wight  0.  Germania  Life  Ins.  Co.,  84  N.  Y.  473 ;  Til- 
ton  0.  Beecher,  50  Id.  170  ;  Peoi)h^  ex  rel.  Swinburne  v. 
Nolan,  N.  Y.  Daily  Ilcffister,  July  7,  1882;  WilmoUr 
V.  Pj-avion,  13  Fed.  It  2,  386. 

VvM  CuuiAM  (Sp:dgvvick,  Ch.  J.,  Van  Vorst  and 
Frkedman,  JJ.)— Order  affirmed  with  costs. 


CORN  WELL,      Respo:tdext,     v.     DICKEL     and 
ANOTiiEU,  Appellants. 

N.  Y.   Court  of  Common  Pleas,   General  Term, 
January,  1885. 

District  court  in  th«  citj/  of  New  York. — Right  of  parti/  to  le  heard  hy 
counsel  oil  mhmisaiou  of  case. 

While  :i  justice  m.iy  in  his  discretion  limit  tiie  time  of  n.  party's  oral 
arjjmni'nt  on  the  conclusion  of  ;i  trisil  in  a  dis'rict  court  of  the  city 
of  New  York,  he  cmnot  deprive  him  of  that  riglit  altoi^etlicr. 

{Decidad  January,  1885.) 

Appeal  from  judgment  rendered  by  Justice  John 
Henry  McCarthy  in  S,eventh  district  court. 

Upon  the  trial  there  was  a  disputed  question  of  fact. 
At  the  conclusion  of  the  testimony  defendant's  coun- 
sel asked  permission  to  be  heard  upon  the  facts  and 
the  law.     The  justice  declined  to  hear  any  argument. 


CIVIL    PROCEDURE    REPORTS.  417 

Corn-well  v.  Dickcl. 

Defendant's  connsel  then  asked  permission  to  submit 
a  written  argument.  This  request  was  also  denied, 
and  judgment  given  for  the  plaintiff.  An  exception 
was  taken  to  each  of  the  rulings  ;  and  the  defendaiits 
appealed. 

Roger  Foster^  for  defendants-appellants. 

The  defendants,  had  the  constitutional  right  to  be 
heard  by  counsel  {Constitution  of  the  State  of  Neio 
York,  Art.  I.  §  6 ;  Rex  v.  Chancellor,  1  Str.  557  ;  Bor- 
den -y.  State,  11  Ark.  519,  odD  ;  Boswell's  Lessee  v.  Otis, 
9  IIow.  [U.  S.l^  33G). 

This  ri,u:lit  was  denied  them.  Chapman  v.  McCor- 
mick,  8G  N,  Y.  479  ;  People  ex  rel.  Cooper  v.  Nichols, 
79  1(1.  582  ;  Article  in  N.  Y.  Daily  Register,  Dec.  15, 
1884.     ' 

P.  Q.  Eckerson.,  for  plaintiff-respondent. 
It  is  the  invariable  practice,  in  district  courts  not  to 
allow  counsel  to  sum  up,  except  in  jury  trials. 

Daly,  Gh.  J. — [Orally.] — Although  a  justice  may  in 
his  discretion  limit  the  time  of  a  party's  oral  argu- 
ment he  cannot  dei)rive  him  of  that  right  altogether.* 

Judgment  reserved,  and  a  new  trial  ordered.  Costs 
to  abide  the  event. 

Lahremore  and  Van  Hoesex,  JJ.,  concurred. 

*  Sf.'o  case  citerl  by  counsel  for  appellant,  and  GrahairCn  Practice  ("3 
Ed.)  pp.  280,  2fl0  ;  Ehvoll  v.  Chamberlain,  31  N.  Y.  611  ;  Hoxie  ». 
Green,  37  lIow.  Pr.  97  ;  :ilarray  v.  N.  Y.  Ins.  Co.,  9  Abb.  N.  C.  309; 
susiaiiiiiig  this  view  of  tlie  subject.  Contra,  People  ©.  Cook,  8  2f.  T, 
67  (77)  ;  Dur/Ues'  Trial  Practice,  233. 

Vol,  VI.— 37 


418  CIVIL    PROCEDURE    REPORTS. 

Little  V.  Lynch. 


little,  as  receiver,  etc.,  respondent,  v.  lynch, 
Appellant. 

Supreme  Court,  First  Department,  General  Terjii, 
January,  1885, 

§1019._ 

He/eree's  report. —  WTiat  amounts  to  a  sufficient  delivery  thereof  to  prevefft 
reference  being  ended  and  entitle  the  referee  to  his  fee. 

A  referee  who.  having  his  report  ready  for  delivery,  notified  the 
attorney  for  the  successfnl  party  v/itliin  the  sixty  days  allowed  for 
its  delivery,  of  that  fact,  and  offered  to  deliver  it  upon  payment  Of 
his  fees,  has  tlioreby  made  a  sufficient  delivery  thereof  within  the 
moaninjT  of  section  1010  of  the  Code  of  Civil  Procedure,  to  prevent 
tlie  reference  being  terminated  and  the  forfeiture  of  his  fees.[*,","'J 

Little  V.  Lynch  (o  JV.  Y.  Civ.  Pro.  216),  reversed  ;{*,"]  Phipps  v.  Car- 
man (23  Enn,  150;  nff'd,  84  N.  T.  ()50),  overruled  and  distin- 
guished ;[",*,»]  Waters  T.  Shepherd  (14  Ilun,  22:{);[',''J  Corne!iiis-o. 
Barton  (12  iV.  T.  Wcelhj  Dig.  21G);[»,"J  Thornton  v.  Tliornton  (66 
Uow.  Pr.  119)  ;[*, •,'<>]  Geib  v.  Topping  (83  N.  T.  4G)^[*j  followed. 

{Decided  January/  8,  1885.) 

Appeal  from  order  vacating  and  setting  aside  judg- 
ment entered  on  referee's  report. 

Reported  below,  .5  JV.  Y.  Cio.  Pro.  216.  Sufficient 
facts* are  stated  in  the  opinion. 

Ahram  Kllnr/.,  for  defendant,,  appellant. 

W.  T.  B.  MUliken,  for  plaintiff -respondent. 

Brady,  J. — This  motion  appears  to  have  -been 
made  and  ginnted  upon  the  ground  that  the  reference 
had  been  terminated  before  the  tiling  of  the  report  of 
the  referee.  It  api)ears  that  the  order  of  reference 
was  entered  upon  tiie  5th  of  April,  1881,  and  that  the 


VIYIL    PROCEDUHE    reports.  419 

•  Tl     HI        r  H.  II  ,11  I   ,      I. ■■----■ 

-  Little  v.  Lynch. 

referee,  npoii  the  ISth  of  May  following,  made  his 
final  report  in  favor  of  the  defendant,  dismissing  the 
plaintiff's  complaint,  and  offered  to  deliver  it  to  the 
■defendant's  attorney  and  said  that  he  conld  have  the 
same  upon  the  payment  of  his  fees  ;  all  of  which  was 
done  within  sixty  days  from  the  time  of  making  the 
same.  But  the  fees  were  not  paid  by  the  attorney. 
A  similar  application  to  this  was  denied  by  the 
supreme  court  of  the  second  district  (Waters  v. 
[']  Shepherd,  li  Ilan,  223).  .  In  that  case  it  appeared 
the  referee  made  his  report  within  the  time  limited 
by  the  statute,  and  on  the  same  day  gave  notice  to  the 
attorneys  for  the  plaintiff  and  the  defendant  that  the 
report  was  ready  for  delivery.  The  report  was  not 
taken  up,  however,  until  after  the  expiration  of  sixty 
days,  when  the  defendant  served  a  notice  in  writing 
upon  the  referee  and  the  plaintiff's  attorney,  that  she 
elected  to  end  the  reference.  The  plaintiff's  attornej^, 
however,  took  the  report  from  the  referee  and  entered 
Judgment  upon  it.  The  special  term  ordered  the 
.judgment  to  stand  as  having  been  regularly  entered. 
The  general  term  affirmed  the  order.  It  was  held  to 
be  sufficient  to  comply  with  the  terms  of  the  statute 
that  the  report  was  made  and  the  parties  notified  of 
Its  terms,  and  that  it  could  be  obtained  on  a])plication 
to  the  referee.  That. decision  rested  upon  section  273 
of  the  Code  then  in  force,  w4iich  required  the  referee 
to  make  and  deliver  his  report  within  sixty  days  from 
the  fime  the  action  was  finally  submitted.  The  decis- 
ion vras  made  in  May,  1878. 

In  December,  1880,  the  same  department  decided  a 
similar.question  (Phipps  v.  Carman,  23  Iltm^  l^^O), 
p]     holding,  however,  that  the  binding  force  of  Wat- 
ers ?'.  Shepherd  w-as  destroyed  by   the  Code  as  al- 
tered since  the  decision   therein  was  made,  irnd   the 
Judgment  of  the  court  seems  to  have  rested  upon  the 
oha nge  which  was  made  by  section  1019  of  the  Code  of 


420  CIVIL    PROCEDURE    REPORTS. 

Little  V.  Lj'ncI). 

Civil  Procedure,  ro  the  effect  that  the  report  may  be 
delivered  to  the  attorney  lor  one  of  the  parties,  or 
liled  with  the  cleik  within  sixty  days;  and  they  de- 
clared that  the  referee  would  not  have  done  his  duty 
under  the  section  unless  he  delivered  his  report  to  the 
clerk  to  be  liled  in  case  it  was  not  taken  up  by  one  of 
the  attorneys  within  the  sixty  days.  That  case  was 
taken  to  the  court  of  appeals  and  decided  on  the  11th 
of  February,  18^1.  It  was  affirmed  without  any  opin- 
ion, but  upon  the  concurrence  of  all  the  jndges.* 

In   the  January  preceding,    however,    the   general 

term  of  this  court,  in  the  third  dei)artment,  in  the 
[']     case  of  Cornelius   v.  Barton    (12   K.    Y.    Weeklij 

Dig.  216),  held  that  where  the  referee  had  made 
his  report  and  was  ready  to  deliver  it  in  the  statutory 
time,  but  held  it  for  the  payment  of  his  feeSy  there  waa 
a  sufficient  delivery  to  j)revent  the  forfeiture  of  his 
fees  on  the  termination  of  the  reference  under  section 
1019  of  the  Code.  In  that  case  it  appeared  that  within 
a  very  few  days  after  the  cause  was.  snbmirted,  the 
referee  notified  the  plaintiff's  attorney  that  the  report 
was  in  readiness  to  be  delivered  on  the  receipt  ot  his 
fees.  The  court  seems  to  have  rested  its  judgment  in 
that  case  upon  the  decision  in  Geib  v.  Top[)ing,  in  the 

court  of  a])peals  (83  N.  Y.  46).  Subsequently  the 
p]     case  of  Thornton  t.  Thornton  (66  Horn.  Pr.  IIU), 

was  decided  at  special  term,  namely,  in  August, 
1883,  and  it  was  held  that  where  the  referee  makes  his 
report  within  the  stalutoiy  lime  and  notifies  the  jittor- 
neys  that  his  rei)ort  is  ready  and  at  their  disposal,  and 
also  of  the  amount  of  his  fees,  it  should  be  deernt^l  a 
sufficient  delivery  to  prevent  the  forfeiture  of  his  fees 
by  the  termination  of  the  reference,  under  section  1019 
of  the  Code  of  Civil  Procedure.  Justice  IIaigiit,  in 
delivering  the  opinion,  said  he  was  aware  the  decision 

*  See  memorandum  of  dcciiiioD  iu  84  N.  Y.  650. 


CIVIL    PROCEDURE    REPORTS.  421 

Little  n.  Lyivcli. 

of  Phipps  V.  Carman  {supra)^  was  in  conflict  with  the 
conclusions  at  which  he  had  arrived,  and  that  the  case 
had  been  affirmed  in  84  N.  Y.,  but  slated  that  he  wns 
unable  to  concur  in  the  opinion  written  in  general 
term,  and  it  seems  for  the  reason  that  th«  general  term 
of  smother  department  had  held  the  other  way — doubt- 
less referring  to  the  case  of  Cornelius  n.  Barton  {supra). 
The  learned  justice  also  said  that  the  court  of  a[)peais, 
it  WHS  true,  affirmed  thedecision  in  Phipps -y.  Cai-nuiti, 
Iwit  did  not  state  the  grounds  upon  which  the  decision 
was  based,  that  there  was  a  dehiy  of  two  years  in  that 
case  in  tiling  the  referee's  report,  and  the  case  was 
distinguishable  from  the  one  under  consideration  by 
liim. 

The  supreme  court,  in  the  second  department, 
seems  to  have  overlooked  the  provision  authorizing 
,[']  the  delivery  of  the  report  as  an  act  which  would 
prevent  the  operation  of  the  statute,  and  destioy 
the  light  of  parties  to  terminate  tlie  reference  by  giv- 
ing the  notice  provided  for,  and  to  have  held  that  the 
referee,  if  the  rejjort  wms  not  actunily  delivered  to  one 
•of  the  parties,  must  iWe  it  in  the  clerk's  office.  It  is 
quite  apparent,  from  the  reading  of  the  statute,  that 
it  is  complied  with  if  he  does  deliver  the  rei)ort  as  one 
of  the  alternates  declai-ed,  and  if  the  notification  under 
section  273  of  the  old  Code,  that  the  report  was  made 
and  ready  for  delivery,  was  a  delivery  within  the 
.terms  of  thnt  statute,  it  certainly  is  within  the  terms 
of  section  1019  of  the  present  Code.  The  filing,  then, 
is  not  necessary,  for  the  first  alternate  is  accomplished. 
This  view  was  not,  it  would  seem,  considered  by  the 
court  of  appeals  upon  the  submission  of  Phipps  v. 
Carman,  because  no  opinion  was  delivered. 

I  think,  therefore,  in  accordance  with  several  cases, 

«onie  of  which  are  cited  by  Justice  Haight  in  hi.s 

['_]     opinion   in    the   case    of    Thornton    v.   Thornton 

<-(52^/>ra},   that   tlie  report -was   eonsta-uctively -de- 


,422  CITIL    PROGEDXTRE  •  REPORTSt 

r. : .-^, 

Little  «.  Lynch. 

livered  by  the  referee  in  this  case  prior  to  the  expira- 
tion of  tl)e  sixty  days  and  under  the  statute,  and  that 
the  requirements  of  section  1019  of  the  Code  of  Civil 
Procedure  were  complied  with. 

The  order  appealed  from  should  be  reversed. 

Baniels,  J. — [Concurring.] — The  order  was  made 
upon  the  ground  that  the  jeferee  had  failed  to  make 
and  deliver  his  rep<jrt  within  the  time  prescribed  for 
that  purpose  by  the  Code,  and  that  notice  had  been 
given   on  the  part  of   the  plaintiffs   terminating   the 
reference.     But  it  was  made  to  appear  that  the  report 
<jf  the  referee  was  subscribed  and  read}'  to  be  delivered  ; 
before   the  expiration  of  the  sixty  days  mentioned  in 
section  1019  of  the  Code  of  Cirnl  Procedure,  and   that 
it  was  offered  to  be  delivered  to  the  defendant's  attor- 
ney  upon    the   payment   of   the   fees   of  the  referee. 
Such  an  offer  was  considered  to  be  equivalent  to  an 
actual  delivery  of  the  report  under  section  27S  of  the 
Code  of  Procedure.     That  provided,  as  the   present 
Code  in  effect  does,  that  the  referee  should  make  and 
deliver  the  report  within  sixty  days  from  the  time  the 
action   should   be  finally   submitted,   and   in   default 
thereof,   and  before  the  report  should  be  delivered, 
either  party  could  serve  notice  upon  the  other  that  he 
electt'd  to  end  the  reference.     Under  that  lan<^uage.  it 
was  held,  in  Waters  x.  Shei)herd  (14  Ilun,  223), 
[']     to  be  sufficient  to  prevent  the  reference  from  being 
avoided  or  the  report  annulled,  that  it  should  bo 
offered  to  be  delivered  within  tlie  sixty  days,  as  this 
report  wa&,  to  the  attorney  of  one  of  the  parties,  upon 
the  piiyment  of  the  fees  of  the  referee.     And  that  wns 
regaided  as  an  accurate  construction  of  this  provision 
of  the  Code,  as  it  was  repeated  in  this  section  of  the 
Code  of  Civil  Procedure,  in  Geib  v.  Topping  (83 
[*]     JV.  Y.  46),  where  it  was  said  that  '*  the  referee  un- 
doubtedly was  not  bound  to  part  with  the  report. 


CWIL    PK0CP:DUKE     reports.  423 

Little  V.  Lyncli. 

without  payment  of  liis  legal  fees,  and  where  a  referee 
lias  his  report  ready  within  the  statutory  time  and 
offers  to  deliver  it  on  payment  of  his  legal  fees,  such 
offer  should,  we  think,  be  deemed  a  suflicient  delivery 
to  pievent  the  forfeiture  of  fees  declared  by  section 
1019  of  the  Code  of  Civil  Procedure  {Id.  48). 

Ir  has  been  sup[)osed,  inasmuch  as  the  legislature, 
by  the  enactment  of  section  1019  of  the  Code  of  Civil 
Procedure^  authorized  the  report  of  the  referee  to  be 
tiled  with  tlie  clerk  within  sixty  days,  that  this 
[*]  additional  libert}^  prevented  the  other  provision 
from  being  complied  with  by  such  an  otter  as  was 
made  in  this  case,  and  was  sanctioned  by  the  author- 
ises already  mentioned.  This  was  held  in  Phipp  v. 
Carman  (23  Ilau,  l'>0),  which  was  affirmed  by  the  court 
of  appeals  (84  N.  Z.  GoO).  But  that  affirmance,  as  was 
stated  by  Mi'.  Justice  Haight  in  Thornton  ??. 
['"]  Thornton  (66  How.  119),  may  very  well  have  pro- 
ceeded upon  the  great  delay  appearing  to  have 
taken  place  before  the  referee's  report  was  hied.  There 
certainly  was  no  good  reason  for  holding  that  the  lan- 
guage^ standing  by  itself,  which  would  permit  a  com- 
pliance with  what  it  required  to  be  done  by  an  offer  of 
the  report  upon  the  payment  of  the  fees  of  the  referee, 
should  be  deprived  of  its  eft'ect  by  the  additional  lib- 
erty given  to  file  it  with,  the  clerk.  That  was  not  the 
fotin  in  which  the  section  was  enacted,  but  it  declared 
that  either  might  be  done  to  maintain  the  force  and 
effect  of  the  report.  It  might,  within  the  sixty  days, 
'•'■be  either  filed  with  the  clerk  or  delivered  to  the 
atroiney  for  one  of  the  parties."  The  referee  accord- 
ingly had  his  election  to  do  one  or  the  other  of  these 
acts,  and  either  would  com[)ly  with  what  the  legislature 
has  required.  If  he  tiled  it  with  the  clerk,  that 
["]  would  be  sufficient.  If  he  did  not  do  tjiat,  then 
a  delivery  to  the  attorney  for  one  of  the  parties 
would  secure  the  preservation  and  validity  of  the  re* 


424  CIVIL    PROCEDURE    REPORTS. 

Little  T.  Lynch. 

port.  And  no  more  was  required  to  make  this  delivery 
to  the  attorney  for  one  of  the  parties  than  had  bc^en 
when  the  same  provision  formed  a  part  of  the  Code  or 
Procedure.  Consequently,  what  would  have  b  en 
a  delivery  of  the  report  to  an  attorney  for  one  of  the 
parties  under  the  Code  of  Procedure^  would  be  equally 
as  o6rai)l«te  a  deliveiy  of  it  under  this  section  of  the 
Code  of  Cicil  Procedure.  And  so  it  was  considered  in 
Geib  V.  Topping  {supra). 

The  same  pK>int  arose  in  Cornelius  v.  Barton  (12 
["]    i\\  Y.  Weekly  Dig.  216),  wiiere  this  construc:;ion. 
of  the  section  was  sustained  by  the  court. 
Certainly,  as  the  enactment  is  precisely  the  same 
concerning  tiie  delivery  of  the  report  to  the  attorney 
in  the  Code  of  CirAl  Procedure  as  it  was  in  the 
['*J    Code  of  Procedure^  what  would  constitute  a  com- 
pliance   with    the   latter,    should    be    held    to    be 
equally  as  effectual  as  the  former.     For  the  additional 
privilege  secured  to  the  ref^-ree  of  filing  his   leport 
with  the  clerk  in  no  manner  tended  to  indicate  what 
might   be   necessary   to  constitute   a   delivery  to  the 
attorney.     Each  delivery  was   separate  and  distinct. 
What  was  a  good  delivery  under  the  same  language 
employed  in  the  Cod,e  of  Procedure  mnst  necessarily 
be  equally  as  good  under  the  like  phraseology  in  the 
Code  of  a  ml  Procedure. 

The  order  should  be  reversed  with  the  usual  cost 
and  disbursements,  and  an  order  entered  denying  the 
motion. 

■  DA.VIS,  P.  J.,  concurred. 


CIVIL    PROCEDURE     REPORTS.  425 


Learned  v.  TiHotsoa. 


LEARNED,     Appellant,     v.    TILLOTSON,     Res- 
pondent. 

Court  of  Appeals,  Octobeu,  1884. 

§§970-972,  1003,  133t. 

Verdict  of  jury  on  specific  question  of  fact  in  actions  triable  hy  rourt.^' 

Power  of  court  to  disregard. — Evidence.  —  When  letter  may 

not  be  received  in.  on   behalf  of  party  who 

wrote  it. — Appeal. — Reviewing  facts 

on,  in  court  of  appeals. 

It  is  well  settled  that,  where,  upoa  the  trial  of  an  action,  there  was  a 
coiiliict  of  testimony  as  to  an  alleged  fact,  and  there  was  no  such 
•preponderance  in  the  evidence  as  would  authorize  the  court  ia 
holding  as  a  matter  of  law  tliat  it  was  estsiblished,  upon  an  appeal 
to  the  court  of  appeals  the  facts  are  not  reviewable. [' J 

The  Code  of  Civil  Procedure  has  not  clianged  the  rule  that  the  ver- 
dict of  a  jury  on  special  questions  of  fact  submitted  to  it  in  an 
equity  action  is  evidence  only  and  not  a  determination  of  tiie  issue, 
and  can  only  beread  on  the  hearing  with  full  power  in  the  court  to 
foliov?  or  reject  it  as  it  might  deem  fit  and  proper. f-*,^,*,^] 

geciion  97:2  of  the  Code  of  Civil  Procedure  wiiich  provides  for  the 
-trial  of  actions  in  wliicli  specific  questions  of  fact  iiave  been  sub- 
mitted to  a  jury,  simply  dedan-s  the  law  sis.it  previously  existed  and 
works  no  alteration  in  tlie  i)racti('e. |'',^,''J  The  riglit  and  the  j)ow- 
er  to  try  and  determine  all  the  issues  in  the  case,  cnuld  not  be  taken 
nway  without  express  words-  to  that  effect,  and  a  clear  intention 
■manifested  by  an  enactment  to  that  effect  ;['J  so  gix;at  a  ciiange  in 
the  practice  of  a  court  of  equity  is  not  to  be  inferred  and  can  only 
'.be  sanctioned  by  clear  and  explicit  provisions  for  tlmt  ijurpose.t*] 

Where,  in  an  action  upon  an  alleged  copartnership  agreement  for  )in 
accounting,  the  question  whether  sucii  an  agreement  was  made 
was  submitted  to  a  jury  and  the  jury  answered  the  question  atKrm- 
atively,  and  the  defendant  aftei"  the  vcixlict  of  the  jury  made  n 
motion  for  a  new  trial  upon  the  minutes,  which  was  denied,  and 
thereafter,  on  a  trial  of  the  action  before  another  judge  at  special 
term,  the  verdict  of  the  jury  and  the  evidence,  etc.,  given  before  it 
were  read  in  evidence,  and"  the  defendant  again  moved  for  a  new 
trial  of  tlie  question  submitted  to  the  jury,  whicli  motion  was  de- 


43r  CIVIL    PROCEDURE    REPORTS:- 

Learned  v.  Tillotsou. 

nicd,  and  the  plaintiff  gave  otlier  evidence  of  the  ternis  of  the 
agreement  and  the  justice  disregarded  tlie  verdict  of  the  jury  and 
found  in  favor  of  the  defendant  on  tlie  question  submitted  to  the 
jury, — ITclJ,  no  error  :[*.%*/',  "j  thit  tlie  court  could,  upon  a  trial 
of  ihe  entire  case,  disregard  the  verdictof  the  jury  and  was  not  pre- 
cluded from  doing  so  by  the  denial  of  the  motion  for  a  new  trial,, 
upon  the  minutes.  ['] 

A  tetter  from  t4ie  plaintiff  in  an  action,  to  five  defendant,  containing  a 
statement  of  the  plaintiffs  chiini  written  long  after  ilie  alleged 
agreement  sued  upon  was  entered  into,  and  which  was  not  answered 
by  the  defendant  cann'^t  be  regarded  as  a  part  of  t!ie  res  gcstca- 
[",'*]  and  cannot  be  received  in  evidence  on  behalf  of  the  party 
wko  wrote  it  ;  it  is  a  mere  declunitioii  of  the  party  in  his  owa. 
behalf  which  did  not  demand  an  answer  and  tiie  silence  of  the 
party  who  received  it  canrot  be  considered  as  an  admission  of  the 
truth  of  the  statement  made,  or  as  binding  u|>on  him.['*j 

"W^H-re,  in  such  arase,  it  appeared  that  the  plaintiff  had  a  conrersatioo 
witii  the  defendant,  subsiquent  to  the  receipt  of  the  letter  by  liim; 
as  to  which  and  the  plaintiff  testitied,  that  in  it  the  defendant  ad- 
mitted tlie  receipt  of  the  letter,  and  said  that  he  did  not  remember 
making  the  agreement,  and  the  defendant  testified  that  he  expressed 
surprise  at  tiie  contents  of  the  letter;  askt  d  an  explanation  of  it 
and  denied  having  made  the  agreement. — Held,  that  the  letter  was 
not  answered  in  this  conversion  so  as  to  rcmder  it  admissible. ['*J 

Keen  v.  Priest  (I  Foder  &  Fin.  314) ;[ "J  Ri.e  «.  Day  (17  Carr.  &  P. 
G98);['*]  GaskJll  v.  Skene  (14  Adol.  <fi  E^  N.  S.  [Eu'j.  Q.  B] 
6«4);['*J  Fenno  v.  Weston  (31  Vt.  34r)):['«J  Allen  v.  Peters /l  rhila. 
78);["J  distinguished;  Talcott  v.  Harris  (98  N.  Y.  5a7);L'"*J  f"^ 
lowed. 

{Decided  October  7,  1884.) 

Appeal  by  plaintiff,  from  a  judgment  of  the  snpfv 
rior  court  of  the  city  of  New  York^  general  term, 
aflirming  a  judgment  dismissing  the  complaint,  ren- 
dered on  a  trial  at  special  term. 

Reported  below,  48  N.  Y.  Supm'.  (16  J.  &  8.)  239.' 

This  action  was  brought  for  an  accounting  of  prof- 
its made  by  defendant  on  certain  purchases  and  sales 
of  stock  of  the  Silver  Islet  Consolidated  Mining  and 
Lands  Company,  alleged  to  have  been  made  by  defend- 
ant under  an  agreemfsnt,  for  a  partnership  venture 


CIVIL    PROCEDURE    REPORTS.  42T 

Learned  v.  Tillotson. 

between  him  and  the  plaintiff  with  an  equal  division 
of  profits. 

The  complaint  alleged  the  agreement  for  I  he  part- 
nership venture,  pnrchases  of  stock,  under  that  agree- 
ment by  the  defendant,  ignorance  by  the  plaintiff  of 
the  amounts  and  prices  of  the  purchase,  and  a  refusal  ■ 
to  account  by  the  defendant. 

The  answer  was  substantially  a  general  denial. 

The  issue  whether  the  alleged  agreement  was  made, 
was  tried  before  a  jury,  and  a  verdict  thereon  was  ren-* 
dered  in  favor  of  the  plaintiff, 

A  motion  for  a  new  trial  of  that  issue,  made  upon 
the  minutes  of  the  presiding  justice,  was  denied.     A* 
second  motion  for  a  new  trial   of  that  issue  made  at 
special  term,  before  the  justice  before  whom  the  remain- 
ing issues  in  the  case  were  tried,  was  by  him  denied.  . 
The  justice  at   the  special  term,   after  denying  that 
motion,  disregarded  the  verdict,  found  the  fact  as  to 
the  making  of  the  agreement  against  the  plaintiff  and  -- 
dismissed  the  complaint. 

In  addition  to  finding  that  the  agreement  alleged  in  • 
the  complaint  was  not  made,  the  justice  further  found  • 
that    '^the   defendant   did   not  enter  into  ....  any 
agreement  similar  to  it  or  of  like  effect  with  it." 

The  plaintiff  and  the  defendant  were  both  residents  ■ 
of  Pittsfield,  Mass.,  and  in  the  summer  of  1878  were 
intimate  friends.  The  former  had  been  engaged  in 
mining  for  many  years  ;  since  18C6  he  had  been  in  the 
habit  of  making, an  annual  visit  to  the  mines  of  the 
Silver  Islet  Company,  of  which  his  brother  Edward 
was  the  president.  He  made  the  usual  visit  to  Silver 
Islet  in  August,  1878,  but  before  leaving  Pittsfield  had  ■ 
a  conversation  with  the  defendant,  on  his  version  of 
which  he  fwinds  his  claim.  As  to  the  time,  place  and 
words  of  this  conversation,  Learned  and  Tillotson  were 
in  conflict. 

The  plaintiff  said  :  "  During  the  seven  days  before 


428  CIVIL    PROCEDURE    REPORTS. 

1 

Learned  v.  TiUotsrm. 

I  left,  I  met  him  (Tillotson)  on  the  east  side  oC  South 
street,  in  Pittsfield.  ...  I  said  to  him,  I  am  going  to 
Silver  Islet  in  a  few  days,  and  during  my  stay  there, 
if  a  deposit  of  rich  ore — a  bonanza — is  found,  I  will 
telegni[)li  yon.  provided  you  will  buy  the  stock  and 
give  me  one-hnlf  of  all  the  profits,  which  he  said  he 
would  do.  .  .  .  The  conve.sation  took  about  as  long  as 
I  am  now  re])eating  it." 

The  defendant  denied  the  meeting  and  the  conversa- 
tion and  said  :  "  I  met  Mr.  Learned  ....  in  the  drug- 
store  As  I  was  leaving  the  store,  he  said  he  was 

going  to  Silver  Islet,  and  as  I  bid  him  good-bye,  he 
said  :  'If  anything  turns  up,  I  will  let  you  know.'  I 
made  no  reply  whatever  that  I  recollect." 

Three  years  before,  a  "bonanza"  had  been  struck 
at  Silver  Islet,  but  after  yelding  a  million  and  a  half 
in  two  years,  it  had  given  out,  and  when  Learned  left 
Pittsfield  on  August  2,  1878,  the  mine  was  i)oor,  and 
the  stock  selling  at  $5  per  share. 

While  he  was  at  Silver  Islet  another  rich  vein  was 
struck,  and  on  August  18,  he  telegraphed  to  Tillotson  : 
"Buy  Silver  Islet  stock  immediately,  as  we  arranged  ; 
mine  immensely  rich,  unparalleled." 

After  making  inquiries  as  to  the  condition  of  the 
mine  the  defendant  bought  some  stock,  which  is  that 
for  an  accounting  for  the  profits  of  -which  this  action 
is  brought. 

On  the  trial  the  plaintiff  offered  in  evidence  the 
following  letter  which  was  excluded  and  an  exception 
trfken : 

"  Office  of  John  -C.  Watson, 
60  Devonshire  Street,  Boston, 
Dec.  2nd,  1878. 
^'Friend  Tillotson: 

"  In  the  Stock  Board  this  afternoon  fifty-three  dol- 
lars was  bid  for  Silver  Islet  certificates.     As  this  stock 
.  is  steadily  adraneing  in  price  and  as  I  may  -be  disposed 


CIVIL    PROCEDURE     REPORTS,  429 

Learned  v.  TiUotson. 

to  sell  some  stock  before  you  are  inclined  to  sell,  or 
vice  xersa;  I  think  it  best  that  you  should  transfer  to 
me  my  proportion  of  the  stock  you  purchased  as  per 
the  veibal  agreement  and  understanding  we  made  a 
short  time  before  I  left  for  Silver  Islet  last  summer, 
which  was  as  follows:  that  if  the  mine  showed  indica- 
tions of  being  rich,  during  my  stay  at  the  Islet,  I  was 
to  advise  you  to  purchase  Silver  Islet  certificates, 
which  you  agreed  to  do,  giving  me  one-half  of  the 
profits  accruing  from  the  purchase  and  sale  of  such 
stock  or  certificates.  This  information  fnrnished  was 
my  capital.  Dnring  my  stay  a  rich  bonanza  was  found, 
and  I  telegraphed  you  to  purchase  Silver  Islet  cer- 
tificates as  per  agreement ;  mine  unparalleled.  You 
did  purchase  (as  you  stated  to  me)  three  hundred 
shares  or  certificates,  paying  ten  dollars  per  share  for 
one  hundred  and  twenty-five  shares.  The  balance  I 
can't  say  what  you  did  pay  for  it.  If  you  will  calcu- 
late what  your  stock  cost  you,  including  interest  and 
then  multiply  300  shares  by,  say  $50  per  share  for 
example,  and  then  deduct  the  cost  of  this  sfock,  you 
will  have  the  net  balance.  Now  take  one  half  of  this 
net  balance  and  divide  it  by  8oO  per  share  and  you  will 
have  the  number  of  shares  I  am  entitled  to  on  this 
basis.    An  early  reply  will  greatl^^  oblige. 

"  I  am  very  truly 

''T.  II.  Leakxed." 

A  conversation  was  thereafter  had  as  to  this  letter 
between  the  plaintiiT  and  the  defendant  in  the  latter 
part  of  December,  at  Pittsfield,  Mass.  The  plaintiff's 
evidence  as  to  which  conversation  w;is  as  follows  : 

"I  had  a  conversation  with  him  about  these  matters  ; 
I  was  in  the  club  room,  and  I  asked  him  if  he  had  re- 
ceived my  letter  and  he  said  he  had  ;  I  asked  him  when 
ho  was  going  to  give  me  my  proportion  of  the  stock 
according  to  our  agreement,  he  said  :  '  I  do  not  remem- 


•'?30  CIVIL    PROCEDURE    REPORTS. 

Learued  v.  Tillotson. 

l)er  having  any  agreement  with  yon  ;'  said  I  *  Tillotson 
why  do  you  say  that?  Why  did  I  telegraph  to  yon 
nlxniL  buying  Silver  Islet  certificates  nnless  I  had  an 
understanding  with  yon?  I  did  it  for  this  reason, 
Ihat  I  had  an  agreement  with  yon  ;  if  I  had  not  tele- 
giaphed  you  to  get  the  stock  the  consequence  would 
-have  been,  that  nobody  could  have  got  the  stock,  and 

"I  would  Imve  had  to  \)^y  ^  very  large  price  for  it ;'  I 

'^do  not  remember  that  he  made  any  reply  to  it.  As  -to 
his  having  made  or  not  any  agreement  of  any  kind,  he 
vsyid  he  had  not  made  any  arrangement  with  me;  he 
used  the  words:  that  he  did  not  remember  making  any 
such  arrangement  with  -tne  ;  he  said  he  had  received 
the  telegram  ;  he  spoke  as  to  his  having  bought  the 
stock  down  at  his  mill,  not  at  the  club-room  ;  in  ans- 
wer to  this  point  that  I  brought  to  his  attention  as  ^o 
my  having  sent  him  the  information,  in  preference  to 
any  other  of  my  friends,  I  do  not  remember  that  he 

(  made  any  remark." 

The  defefidant's  evidence  as  to  this  conversation  was 
as  follows  :  "  I  spoke  to  Mr.  Learned  in  relation  to  this 
letter  I  received  from  him  and  told  him  I  was  greatly 
surprised,  it  was  a  very  funny  letter  and  asked  him  to 
explain  it,  he  said,  it  explains  itself,  he  says  he  made 
a  contract  with  me^  before  he  went  out  to  Silver  Islet ; 

-  1  asked  him  where  it  was  ;  he  said,  down  on  the  street, 
and  I  made  a  remark  to  Mr.  Learned  at  that  time : 
*Tom  what  is  the  nse  of  your  lying  to  me  ?  You  know 
we  never  had  a  conversation  about  purchasing  stock  ;' 
and  he  says  'keep  yonr  stock  ;  if  you  ain't  a  mind  to 

.  give  it  to  me,  you  may  keep  it.'  " 

Alhert  SticJcneif  {Sitickney  <& Sfiepard,  Attorneys), 
for  plaintiflF,  appellant. 

The  exclusion  of  the  letter  of  December  2nd  was  an 
error.  The  letter  was  admissible  as  a  part  of  the  res 
gestce.     The  issue  being  whether  or  not  there  was  any 


CIVIL    PROCEDURE    REPORTS.  mi 


Learned  v.  Tillotson. 


agreement,  there  being  no  agreement  in  writing,  ahd 
I  he  evidence  of  the  two  ])arties  as  to  whether  or  not 
there  was  any  oral  agreement  being  in  direct  conflict, 

4t  was  necessary  and  admissible  upon  this  issue,  to 
give  in  evidence  the  entire  history  of  the  acts  and  com- 
munications of  the  parties,  for  the  purpose  of  ascer- 
taining'which  party  told  the  truth.  No  one  of  those 
nets  and  communications  is  conclusive  ;  each  one  is  to  be 
v/eighed,  but  allare  ....  alike  admissible.  This  entire 
series  of  acts  and  communications,  as  to  this  transac- 
tion between   these   two  parties,  constitutes  the  res 

-</rs.t(B.  It  is  secondary  and  circumstantial  evidence. 
It  is  admissible  in  the  absence  of  conclusive  primary 

-evidence The  letter  is  admissible  as  part  of  the 

res  gesfcB  notwithstanding  it  contains  the  plaintiffs 
own  dedarations  in  his  own  fjlvor.     Citiw^  Greenledf 

•on  Ecidencc,  §  108  ;  1  Taylor  on  Emdence^  %  5Sd  ;  Bea- 
ver «.  Taylor,  1  Wall.  {U.  S.)  637  ;  Milne  x.  Leisler,  7 
Hurl.  &  "n.  {Bng.  Bxcr.)  786,  796 ;  Conn.  Mutual  Life 
Ins.  Co.  V.  -Lathrop,  29  Alb.  L.  J.  429.  Although 
the  letter  contains  a  statement  as  to  the  alleged  agree- 
ment, made  after  the  date  when  the  agreement 
was   made,  it  is  still  admissible  as   \mvt   of  the  rts 

'rgestcB.      Citing   1    Taylor    on  Enidence,   §    688;   Mc- 

-€otter  V.  Hoolier,  8  N.  Y.  497  ;  Palmer  v.  First  Nat. 
Bank,  4  iV.  Y.  Weekly  i)//;.  268  ;  JewelTs  Lessee  v. 
Jfwell,  1  How.  {U.S.y2\^\  Commomvealth  ?5.M'Pike. 
-3  Cush.  \3Iass.)  181;  Commonwealth  t)..  Hacket,.  2 
Allen  {Mass.)  136;  Tompkins  ?\  Saltmarsh,14  SergL& 
.Haw.  (Pa.)  275;  Rawson  «.  Haigh,  2 Bhu}.{Eng.C\  P.) 
99  ;  Ridley  v.  Gade.  9  Id.  349  :  Rouch  ?;.  Great  Westn. 
R.  R.  Co.,  1  Q.  B.  51  ;  Thorndike  d.  City  of  Boston,;  1 
Mete.  {3fass.)  242  ;  Doe  v.  Ark w right,  5  Carr.  cG  P. 
{Eng.  N.  P.)  575.  The  only  principal  that  can  belaid 
on  this  branch  of  the  law  of  evidence  is,  that  every 
act  or  declaration  of  an}^  party,  which  is  a  part  of  the 
history  of  the  transaction  under  investigation,  isadmis- 


432  CIVIL    PUOCEDUKE    REPO:iTS. 

Lf.iriied  v.  Tilldtsoii. 

sible  as  part  of  the  res gcstcB.'dn  circnmstantiul  evidence, 
in  the  absence  of  conclusive  direct  evidence  and  upon 
the  precise  point  in  issue.  Citing  llicklerv.  Leighton, 
70  N.  Y.  610  ;  Fisher  v.  Mayor,  67  Id.  73  ;  Xwomley  v. 
Cent.  Park,  &c.  R.  R.  Co.,  69  Id.  158  ;  Eager  c.  Craw- 

ford,  76  Id.  97  ;  Shaw  v.  People,  3   Ilan,  2T2 

Even  if  the  letter  was  a  mere  unanswered  letter,  it  was 
admissible.  Keen  v.  Priest,  1  Foster.  &  Fin.  {Eng. 
N.  P.)  314 ;  Roe  v.  Day,  7  Carr.  &  Pa.  {Eng.  i\'.  P.) 
705.  Taken  however  in  connection  with  all  the 
circumstances,  the  defendant's  omission  to  answer  the 
letter  constituted  an  admission  by  conduct.  Citing, 
Greenleaf  on  Eoidence^  §§  197,  198  ;  Kelley  v.  People, 
b6  N.  Y.  565  ;  Le  Bau  v.  Vanderbilt,  3  Bed/.  334,  399  ; 
Gaskill  ».  Skene,  14  Adol.  d;  E.N.  S.  {Eng.  Q.  B.) 
664  ;  Fenno  v.  Weston,  31  Vt.  345  ;  Allen  v.  Peters,  4 
Phila.  84.  The  letter,  however,  was  answered  in  the 
subsequent  conversation,  and  was  admissible  for  that 
if  on  no  other  ground It  is  an  ordinary  occur- 
rence to  prove  statements  of  a  party  for  the  purpose  of 
showing  that  he  knew  them  to  be  untrue,  and  thereby 
establishing  against  him  a  wrongful  or  fraudulent 
intent  in  making  the  statements.  Coleman  v.  People, 
58  N.  Y.  555,  560  ;  Piatt  o.  Piatt,  58  Jd.  649  ;  Dalton  v. 
"Woodman,  9  Cush.  {Mass.)  255.  It  was  not  within 
the  power  of  the  court  to  disregard  the  verdict  of  the 
jnry  ....  It  was  an  erroi'  for  the  court  to  go  beyond 
llnding  against  the  contract  jileaded  in  the  complaint, 
and  to  find  that  the  parties  did  not  make  any  agree- 
ment similar  to  it  or  of  like  effect  with  it.  We  are 
unable  to  Hud  any  precedent  .for  such  a  course.  The 
findings  in  a  case  should  cover  only  issues  that  are  on 
the  record  and  have  been  tried.  It  might  have  great 
weight  against  the  plaintiff,  in  case  he  should  be 
linall}'^  defeated  in  this  action  and  should  see  fit  to 
bring  another  action  on  a  somewhat  different  agree- 
ment. 


CIVIL    PROCEDURE     REPORTS.  433 


Learned  v.  Tillotson. 


Joseph  H.  CJioate  and  Henry  A.  Root  {Root  &  Mar- 
tin^ attorneys),  for  defendant,  respondent. 

This  court  has  no  power  to  review  the  facts.  Code 
Ch.  Pro.  §  1337 ;  Matter  of  Ross,  87  N.  Y.  514.  It 
was  contended  in  Verniil yea  r.  Palmer,  62  N.  Y.  471, 
that  under  the  Code  of  Procedure  this  court  had  power 
to  examine  and  review  questions  of  fact  in  an  equity 
action,  where  u  specific  question  of  fact  had  been  tried 
by  a  Jury;  and  this  court  there  hekl  that  it  did  not 
have  that  power.  Their  reasoning  to  support  that 
decision  {Id.  473),  is  appropriate  to  cases  arising  under 
the  Code  oT  Civil  Procedure,  except  that  the  inhibition 
of  the  latter  is  express.  The  court  at  special  term  dis- 
regarded the  verdict  as  unsatisfactory  and  found  for 
itself  against  the  plaintiff.  This  was  within  the  court's 
power  and  wholly  within  its  discretion.  The  issue  is 
tried  b}^  the  court,  and  not  by  the  jury.  The  Jury 
simply  find  on  a  question  of  fact.  Their  verdict  is  an- 
cillary to  the  court's  action  ;  it  is  purely  advisory  ;  it 
is  not  conclusive.  If  it  goes  before  the  court,  undis- 
turbed, and  no  motion  to  set  it  aside  is  granted,  the 
court  can  give  that  verdict  such  weight  as  it  pleases  ; 
ir  can  treat  the  verdict  as  conclusive  and  refuse  ordis- 
jtense  with  other  evidence  on  the  question  submitted  ; 
it  can  demand  or  receive  other  evidence  on  that  ques- 
tion, or  it  can  disregaid  the  verdict  and  find  the  fact 
for  itself.  Citing  Bootle  o.  Bliindell,  19  Ves.Jr.{Eng. 
Chy.)  494,  499  ;  Ilampson  v.  Hampson,  3  Ves.  &  Bea. 
{Eng.  Chy.)  41,  42  ;  Basey  ?\  Gallagher,  2  Wall.  {  U.  S.) 
()70,'(580;'Watt  v.  Starke,  101  U.  S.  {II  Otto)  2^1 ;  Colie 
V.  Tilfr,  47  N.  Y.  119  ;  Birdsall  v.  Paiterson,  T)!  Id.  43; 
Yermilyea  v.  Palmer,  52  i^.  471  ;  Brinkley  ^\  Brinkley, 
2  ?'.  &  C.  501;  alfd  in  effect,  5G  N.  Y.  192;  Smith  v. 
Chasseand,  1  iV.  Y.  WeeJdy  Dig.  117;  Miaglian  v.  Hart- 
ford Ins.  Co.,  12  Hail,  321 ;  Hatch  v.  Peugnet,  64  Barb. 
189.     The  Code  of  Civil  Procedure  lias  not  changed 

the  effect  of  special  findings In  the  following 

Vol.  VL— 28 


434  CIVIL    PROCEDUIlIi:     REPORTS. 

Li'iuned  c. .Tillotson. 

cases,  decided  since  this  Code  went  into  effect,  it  has 
been  laid  down  tliat  tlie  court  at  special  term  had 
] tower  to  disregard  the  verdict.  Ward  v.  Warren,  15 
Ilun,  600;  aff'd,  82  N.  Z.  2G5  ;  WaUace  «.  American 
Linen  Thread  Co.,  16  Ilun^  404;  Madison  University 
t.  White,   20   Id.   490  ;    Carroll  v.   Deimel,   13   N.  Y. 

Weekly  Dig.  401 It  makes  ho  difference  in  the 

effect  of  the  verdict  or  in  the  vahie  of  our  objections 
to  it  that  our  motions  for  a  new  trial  had  been  denied. 
Brown  V.  Clifford,  7  Lans.  46^  appeal  dismissed,  64 
N.  Y.  036 The  letter  of  December  2,  was  admiss- 
ible to  prove  a  demand  but  incompetent  as  of  the  facts 
it  stated.  ...  It  was  simply  plaintiff's  declaration  in 
his  own  favor.  Citing  Waring  ti.  United  States  Tel. 
Co.,  4  Dahj,  233;  Allen  v.  Peters,  4  Pliila.  78;  An- 
thorne  ».  Coit,  2  Hall,  40;  Robertson  v.  Fitchburg  R. 
R.  Co.,  7  Gray  {Mass.)  92  ;  Hill  ?;.  Pratt,  29  Vt.  119; 
People  V.  Lockwood,  3  IIuu..,  304  ;  Fairlie  v.  Denton, 
3  Carr.  c6  Pa.  {Eng.  N.  P.)  103  ;  Gaskill  v.  Skene,  4 
Adol.  &  E.  N.  S.  {Eng.  Q.  B.)  604  ;  Richards  v.  Fran- 
kime,  9  Carr.  &  Pa.  {Eng.  N.  P.)  '■221  \  Draper  i?. 
Crofrs,  1.^  Mees.  &  Wels.  {Eng.  Excr.)  100;  Talcott  v. 
Harris,  93  N.  Y.  067,  571 ;  Meguire  v.  Corwin,  3  Mac- 
Arthur,  {D.  C.)  81  ;  Wright  v.  Doe  ex  dem.  Tothara, 

7  Adol.  i&  E.  {Eng.  Q.  B]  313 It  was  right  for 

thft  court  to  find  that  no  agreement  was  made  of  like 
effect  with  that  alleged.  The  defendant  is  entitled  to 
an  adjudicati(m  that  will  put  the  whole  controversy 
forever  at  rest.  If  i)lainliff  chose  to  allege  one  agree- 
ment and  piove  another,  he  must  be  barred  as  to  both. 
The  judgment  is  conclusive  between  the  jtarties,  not 
only  as  to  all  matters  expressed  in  the  pleadings,  but 
also  as  to  all  matters  which  were  litigated  or  might  have 
been  litigated  in  the  action.  Patrick  v.  Shaffer,  94 
iV.  Y.  423,  430. 

Miller,  J. — The  plaintiff,  in  his  complaint  in  this 


CIVIL    PROCEDURE    REPOTlTS.  435 

,.-« 1(111  II- 1 II 1 1  I.    -  ■■■  . 

Learned  v.  Tillotson. 

action,  demands  tbxit  the  defendant  account  for  all 
purchases  and  sales  made  hy  him  of  certain  stock  of 
Tlie  Silver  Istet  Consolidated  Mining  and  Land  Com- 
pany, under  an  alleged  agreement  for  a  co-partnership 
venture  with  an  equal  division  of  profits,  by  which  the 
])]aintiff  was  to  furnish  information  as  to  the  probable 
•valne,  as  a  purchase,  of  the  capital  stock  of  said  com- 
pany, which  information  was  to  be  used  for  the  joint 
benefit  of  the  plaintiff  and  defendant,  and  for  all  uses 
inade  b}^  the  defendant  of  such  information  furnished 
by  the  plaintiff. 

The  question  whether  a  valid  agreement  was  estab- 
lished between  the  plaintiff  and  the  defendant,  by 
which  the  defendant  obligated  himself  to  pay  to  the 
plaintiff  a  portion  of  the  profits  realized  by  him  in  the 
X:)urchase  of  the  stock  of  the  Silver  Islet  Mining  Com- 
pany, involved  a  matter  of  fact  for  the  consideration 
and  determination  of  the  judge  at  special  term  upon 
the  trial  of  this  action.  The  testimony  of  both  the 
plaintiff  and  defendant,  who  were  the  principal  wit- 
nesses in  regard  to  the  terms  of  the  alleged  agree- 
[*]  ment,  was  in  conflict,  and  there  was  no  such  pre- 
ponderance in  the  evidence  as  would  authorize  a 
holding,  as  a  matter  of  law,  that  a  valid  agreement 
was  established,  by  which  the  defendant  was  bound 
to  render  an  account  to  the  plaintiff  for  profits  made, 
or  for  one  half  of  the  stock  purchased  by  him  by  rea- 
son of  such  agreement.  It  is  well  settled  that,  under 
such  circumstances,  upon  an  appeal  to  this  court  the 
facts  are  not  reviewable  {Code  of  Civil  Procedure^ 
§  1337;  Matter  of  Ross,  87  N.  i''.*514;  see  also,  Ver- 
milyea  o.  Palmer,  62  Id.  471). 

In  this  case,  however,  it  appears  that  a  specific 
question  of  fact  as  to  the  existence  of  an  agreement 
between  the  parties  had  previously  been  submitted  to 
the  jury  upon  the  trial  before  the  judge  at  special  term, 
and  a  verdict  rendered  in  plaintiff's  favor^  and  that  the 


436  CIVIL    PROCEDUliE    REPORTS. 

^-^      -A 

Learned  v.  Tillotson. 

cause  was  subsequently  tried  by  another  judge  upon 
oral  testimony  taken,  as  well  as  the  testimony  given 
upon  the  former  triiil  contained  in  nn  exhibit,  which 
was  introduced  in  evidence,  and  the  verdict  previously 
rendered,  and  it  is  claimed  by  the  appellant's  counsel 
that  it  was  not  within  the  power  of  the  court  to  disre- 
gard the  verdict  of  the  jury. 

Under  the  practice  of  the  court  of  chancery  as 
[']    it  formerly  existed  the  rule  undoubtedly  was  that 

the  finding  of  speciiic  issues,  tried  before  a  jury 
when  ordered,  was  not  a  final  determination  of  such 
issues.  The  verdict  of  the  jury  was  not  conclusive, 
and  could  only  be  read  on  tiie  hearing  with  full  power 
in  the  court  to  follow  or  reject  it  as  might  be  deemed 
fit  and  proper.  It  was  only  a  part  of  the  evidence,  and 
if  for  any  reason  it  was  deemed  unauthorized,  it  could 
be  rejected,  andwas  not  obligatory  upon  the  court.  The 
object  of  such  a  proceeding  was  ancillary  to  the  action 
of  the  court  and,  simply  advisory.     If  the  verdict  was 

not  set  aside  the  court  was  authorized  to  give  it  such 
[*]    weight  as  it  determined  it  was  entitled  to.  Itcould 

treat  it  as  entirely  conclusive,  and  dispense  with 
other  evidence  upon  the  issues  presented,  or  it  could 
allow  other  evidence  to  be  given,  or  entirely  disregard 
the  verdict,  and  find  the  fact  according  to  its  own 
judgment  {DanieWs  C7i.  Pr.  1146  ;  Bootle  v.  Blundell. 

19  Vcs.  Jr.  \Eng.  City.']  494,  499  ;  Hampson  ?;.  Ilamp- 
son,  ^Ves.  &  Bra.  [Eiif/.  Chy.]  41  ;  Basey  x.  Galiagiier,- 

20  Wall.  [U.  a]  070,  G80;  Watt  v.  Starke,  101  U.  S. 
247;  Colie  V.  Tifft,  47  N.  Y.  119;  Birdsall  v.  Paller- 
son,  51  Id.  4;j ;  Verrailyea  -u.  Palmer,  t)2  Id.  471,  474). 

The  Code  of  Procedure  did  not  change  the  rule 
[•]  but  left  the  verdict  of  the  jury  as  evidence  only 
and  not  a  determination  of  the  issue.  It  is  claimed 
that  the  Code  of  Civil  Procedure  has  changed  the  prac- 
tice and  has  made  the  verdict  of  a  jury  in  an  equity 
case  the  final  determination  of  the  issue,  and  reliance 


CIVIL    PROCEDURE    REPORTS.  437 

Learned  v.  Tillotson. 

is  placed  upon  the  provisions  of  section  1003  of  that 
C«de,  which  provides  for -the  reviewing  of  the  verdicts 
of  juries  in  both  common-law  and  equity  cases,  and 
declares  that  "the  provisions  of  this  article  relating  to 
the  proceedings  to  review  a  trial  by  a  jury  are  applic- 
able to  the  trial  by  a  jury  of  one  or  more  specific  ques- 
tions of  fact  arising  upon  the  issues  in  an  action  tri- 
able by  the  court."  It  then  refers  to  the  special  term 
as  that  court  where  ^'the  remaining  issues  of  fact  are 
tried.'-  The  preceding  section  (972)  which  is  also 
relied  upon,  contains  words  of  a  similar  import  and 
pi^)vides  that  "if  the  questions  directed  to  be  tried  by 
a 'jury,  as  prescribed  in  the  last  two  sections,  do  not 
embrace  r.ll  the  issues  of  fa'ct  in  the  action,  the  remain- 
ing issues  of  fact  must  be  tried  by  the  court  or  by  a 
'  referee.^'  If  any  change  is  made  it  is  by  virtue  of 
[']  the  section  last  cited,  which,  we  think,  simply 
declares  the  law  as  it  previously  existed,  and 
works  no  alteration  in  the  practice.  The  enact- 
ment that  questions  not  submitted  to  a  jurj'  must 
be  tried  by  the  court  is  not  a  declaration  that  the 
question  submitted  to  the  jury  must  not  be  tried  by 
the  court.  It  simply  provides  in  what  manner  the 
issues  not  tried  shall  be  tried,  leaving  the  issues 
which  have  been  tried  to  be  determined  the  same 
as  formerly  upon  the  final  hearing.  The  right  and 
the  power  to  try  and  determine  all  the  issues  in 
[*]  the  case  could  not  be  taken  away  without  ex- 
press words  to  that  effect  and  a  clear  iatention 
manifested  by  an  enactment  for  that  purpose.  So 
great  a  change  in  the  pi'actice  Of  a  court  of  equity  is 
not  to  be  inferred  and  can  only  be  sanctioned  by  clear 
and  explicit  provisions  for  that  purpose. 

The  claim  urged,  that  the  "remaining  issues"  are  to 

be  interpreted  as  meaning  that  the  questions  submitted 

to   the  jury  no   longer  remain  for  trial,  and  "are 

£']  -finally  disposed  of  bythe  v^erdict,  is  not,  we.  think, 


438  CIVIL  proceduhe  reports.' 

_^ 

Learned  v.  Tillotson. 

well  founded.  Iq  the  sense  in  which  these  words  are 
used  they  simply  mean  the  other  issues  which  have 
not  been  tried,  thus  leaving  it  for  the  court  to  deter- 
mine, upon  the  entire  case,  of  which  the  verdict  con- 
stitutes a  part,  the  questions  presented  for  trial.  This  - 
construction  is  supported  by  the  opinion  of  Chuuch,  . 
C.  J.,  in  Vermilyea  v.  Palmer  {supra},  where,  after 
referring  to  *he  facts  found  by  the  Jury,  he  speaks  of 
the  other  facts  as  the  "  remaining  facts."  There  is  no 
provision  in  the  Code  of  Civil  Procedure  as  to  the- 
[']  effect  of  the  verdict,  and  thus  the  law  is  left  un- 
changed in  this  respect.  This  construction  is  also 
supported  by  the  notes  to  sections  1003  and  972,  in 
Throop^s  Edition  of  the  Code.  There  is  nothings  we 
think,  in  section  1225  of  the  Code,  or  in  any  other  of 
the  provisions  relied  upon,  which  sustains  the  position 
of  the  appellant'^s  counsel. 

The  motion  for  a  new  trial  upon  the  minutes^ .. 
[*]  after  the  verdict,  and  its  denial  does  not,  we  think, 
preclude  the  court,  upon  a  trial  of  the  entiie  case, 
from  disregarding  the  verdict.  An  examination  of  the 
various  provisions  of  the  Code  leads  us  to  the  conclu- 
sion that  the  court  at  special  term  committed  no 
error  in  this  respect.  Upon  the  trial  it  api)ears  \x> 
have  b«en  conceded  that  the  verdict  was  not  conclu- 
sive, for  the  appellant  submitted ev.ery  question  to  the- 
conrt,  proved  his  whole  case  r<?i?7io«;o  by  oral  testimony^ 
and  introduced  in  evidence  the  verdict,  the  srenogin- 
y>her's  minutes  of  the  first  hearing,  including  the 
judge's  charge.  In  fact,  the  testimony  tended  tosliow 
an  agreement  which  differed  somewhat  from  thtir, 
found  by  the  jury.  The  whole  ease  was  thus  tried, 
['•]  and  we  are  unable  to  discover  that  there  was  any 
rule  of  practice  violated  by  the  judge  in  disposing 
of  the  samei 

Upon  the  trial  at  special  term  objection  was  made' 
to  the  introduction  in  evidence  of  a  letter  from  the- 


€IYIL    PROCEDURE    llEl'ORTS.  439 

Learned  c.  'Jillotspn. 

phuntiff  to  the  defendant  dated  the  2d  diiy  of  Decem- 
ber, 1878^  and  the  letter  was  excluded,  except  for  the 
jiurijose  of  showing  a  demand  by  the  plaintiff  of  the 
defemlant  of  the  stock  claimed  to  belong  to  the  plaint- 
ifT.  This  same  letter  was  received  in  evidence  npou 
the  first  hearing agjiinst  the  objection  of  the  defendant, 
and  an  exception  taken  to  the  ruling.  The  letter  in 
question  contained  a  statement  of  the  plaintiff's  claim 
against  the  defendant,  and  it  is  insisted  that  it  was 
admissible  as  a  j»art  of  the  7'es  fjreslce. 

If  the  letter  was  competent  it  must  be  on  thegronnd 
that  it  was  a  statement  made  by  the.  plaintiff,  which 
called  for  a  response  from  the  defendant,  and  none 
having  been  given,  the  silence  of  the  defendant,  and 
Lis  failure  to  make  any  reply  to  the  same  was  an  ad- 
mission of  the  accuracy  of  the  statement  made  in  the 

letter.  The  letter  itself  cannot  be  reirarded  as 
[''j   coming  within  the  rule  that  where  a  staieujent  is 

made  at  the  time  when  credit  is  given,  as  in 
an  action  for  falsely  representing  the  solvency  of  a 
stranger,  proof  may  be  given  that  the  plaintiff  trusted 
him  in  consequence  of  the  misrepresentation,  or  as 
evidence  of  declaration  in  kindred  cases  accompany- 
ing the  acts  done,  which  constitute  a  part  of  the  res 
geslcs.  (1  Taylor  on  Evidence^  §  o8a  ;  Beaver  v.  Tay- 
h)r,  1  Wall.  \U.  *S'.]687;  Milne  v.  Leisler,  1  HiirL  & 
N.  IE  tiff.  Excr.]  786,  796.) 

The  letter  containing  the  statement  as   to   the 
['"]    transaction    was    written    long    after   the   alleged 

agieement  was  entered  into,  and  cannot  well  be  re- 
gai'ded  as  accompanying  and  constitulinga  partof  the 
?iame.  It  was  evidently  an  after-though,  intended  to 
diaw  frcra  the  plaintiff,  in  response,  a  statement  of  his 
version  of  the  transaction,  and  the  evidence  cannot  be 
jtistiHed  upon  the  giound  that  it  was  in  the  natuie  of 
a  conversation  had  after  the  contract  had  been  made,, 
which   contained  statements    as   to   what  had   lakea 


440  CIVIL    PROCEDURE    KEPORtS. 

Learned  v.  Tillotson. 

place  at  the  time  of  the  original  contract,  and  hence 
was  a  part  of  the  res  r/estce  within  some  of  the  authori- 
ties cited  by  the  api^jllant's  counsel.  The  statement 
was  entirely  ex parte^  not  made  in  the  presence  of  the 
defendant,  and,  therefore,  he  was  not  in  the  position 
of  one  [o  whom  a  conversation  is  addressed,  who  is 
called  upon  at  the  time  to  make  an  answer  to  the  same, 
or  lo  suff^^r  the  consequences  of  such  inferences  as  may 
be  derived  from  the  fact  of  his  remaining  silent,  and 
thus  acquiescing  in  the  correctness  of  the  representa- 
tions made.  Nor  can  it  be  said,  we  think,  that  the 
statement  contaijied  in  the  letter  bears  any  analogy 
to  a  case  where  an  injured  party  makes  a  statement 
after  the  transaction,  which  is  held  under  certain  cir- 
cumstances in  some  of  the  authorities,  to  be  compe- 
tent testimony. 

Some  of  the  cases  cited,  to  establish  the  admissi- 
bility of  declarations  in  favor  of  or  against  the  party 
making  them,  relate  to  the  question  of  intent,  and 
have  no  application  to  the  case  at  bar  (Ridley  o. 
Gade,  9  Bimj.  [Eng.  C.  P.]  849  ;  Thorndike  v.  City  of 
Boston,  1  Mdc.  [Mass.']  242). 

Other  authorities  are  cited  to  sustain  the  position 
that  the  letter  taken  in  connection  with  the  defend- 
ant's silence  and  the  subsequent  interviews  between 
the  parties,  was  evidence,  on  the  ground  that  it  tended 
to  establish  an  admission  by  the  defendant.  These 
cases  have  been  examined,  and  we  think  hone  of  them 
present  the  precise  question  now  considered. 

In  Keen  v.  Priest  (1  Foster  &  Fin.  [Eng.  N.  P\\ 
["]  314),  the  letter  then  in  question  was  from  the 
plaintiff's  attorney  to  the  defendant  demanding 
redress  for  "an  illegal  seizure  of  sheep,"  and  it  was 
;»d!nitfed  on  the  ground,  that  it  was  evidence  of  the 
C'»ndu<'t  of  the  defendant,  of  which  silence  was  sorae- 
tjme.s  evidnnre.  It  will  be  seen  that  the  case  was  one 
of  a  tortious  nature  and  iu  this  respect  differs  from  an 


CIVIL     PROCEDURE     REPORTS.  441 

Ljeanied  ».  Tillotson. 

action  upon  a  contract,  where  the  letter  is  offered  to 
show  the  plaintiff's  version  of  the  contract  and  its 
admission  by  the  mere  silence  of  the  defendant. 

In  Hoe  V.  Day  (7  Ocur:  &  P.  {Eng.  JS'.  P.]  393), 

["]    the  letter  introduced  was  the  last  of  a  written  cor- 

responde.nce,  and  vvas.com[)ptent  for  the  i)urpose 

of  showing  all  that   passed  between  (he  parties.     In 

Gas  kill  V.  Skene  (14  Adol.  (fe  E.,  N.  S.  {Eng.  Q.  B..] 

["]   (3G4),  the  letter  was  received  in  evidence,  as  being, 

in  substance,  a  demand,  and  containing  only  such 

statements  as  migiit  fairly  accompany  a  demand.   The 

remaiks  of  Coleridge,  J.,  evince  that  a  mere  ex  parte 

statement  in  a  letter,   of  the  i)arty's  case,  cannot  be 

received  as  evidence  upon  the  ground  that. it  remains 

unanswered. 

In  Fenno  v.  Weston  (31  Vt.  345),  the  letter  in 
['"]  question  was  introduced  in  evidence  without  ob- 
jection, and  constituted  a  portion  of  the  corre- 
spondence betw-een  the  parties  and  the  question  in 
reference  to  it  was  raised  in  regard  to  the  charge  of 
the  judge.  The  precise  point  now  made  was  not  pre- 
sented. There  were  no  letters  passing  between  these 
])arties  which  authorizes  the  admission  of  the  letter 
objected  to  as  a  part  of  tiie  correspondence,  and  it  does 
not  appear  thai  the  defendant  ever  wrote  to  the  plaint- 
iff, or  had  any  communication  witli  him  on  the  subject, 
except  of  an  oral-character. 

In  Allen  v.  Peters  (4  Fhila.  78),  the  decision 
["]  was  based  on  the  ground  of  a  misdirection,  or  a 
want  of  full  direction  in  the  charge,  and  the  ques- 
tion whether  the  letter  was  properly  admitted  was  not 
decided  and  there  is  nothing  in  the  opinion  of  the 
court  which  sustains  the  admissibility  of  a  letter  of 
tlie  character  of  the  one  wliich  was  excluded  under  the 
facts  presented  in  the  case  at  bar. 

IS  or  can  it  be  said,  we  think,  that  the  letter 
.•L"]   ^^'^s   answered,  in    the    subsequent    conversation 


U2  CIVIL     PROCEDURE     REPORTS. 

^ I 

Learnetl  v.  Tillotson. 

between    tlie  parties,  whicli    was   given    in, evidence 
npon  the  trial,  so  as  to  render  tlie  letter  admissible^ 
Some  olher  cases  are  cited  by  the  appellant's  counsel, 
but  none  oi  tliem  hold,  that  a  letter,  written  under  the- 
cii-camstances  presented  here,  is  competent  evidence, 
of  itself,  against  the  p^rty  to  whom  it  is  addressed.    On- 
the  contrary,    numerous   autorities    sustain    the 
["t]    position  that  a  letter,  written  long  after  the  trans- 
action has  taken  place,  stating  the  facts  relating,. 
t(*  the  same,  and  the  agreement  of  the  parties,  under 
ordinary  circumstances,  is  a   mere  declaration  of  the 
pyrty  in  his  own  behalf,  which  does  not  demand  an 
answer,  and  that  the  silence  of  the  party  cannot  be- 
considered  as  an  admission  of  the  truth  of  the  state- 
ment made  and  as  binding  upon  him. 

The  question  iiere  discussed  has  been  the  subject  of 
consideration  in  a  recent  decision  of  this  court  (Talcott 
V.  Harris,  93  i\^.  Y.  567,  571).  In  that  case  the 
[•*]  action  was  against  a  person  who  had  been  dis- 
charged in  bankruptcy,  and  it  was  claimed  that* 
the  discharge  was  invalid  on  the  ground  that  there 
was  fraud  in  the  contiact  by  the  l)ankrupt.  An  order 
of  arrest  hiid  been  issued  upon  affidavits  averring  fraud 
in  contracting  the  debt,  and  tipon  the  trial  the  plaintiff, 
introduced  in  evidence,  against  the  objection  and  ex- 
ception of  the  defendant,  the  papers  uj)on  which  said, 
order  was  granted.  This  ccurt  held  that  the  evidence 
was  erroneously  received,  and  reversed  the  judgment. 
It  was  laid  down  in  the  opinion  that  "  if  the  affidavits 
in  question  were  competent  evidence,  it  must  be  upon 
the  ground  that  they  were  statements  made  by,  or  on 
behalf  of  the  plaintiff,  showing  the  fraud  of  the  de- 
fendants, which  were  uncontradicted  by  the  defendants 
and  that  they  acquiesced  in  the  propriety  of  the  order 
and  in  the  truth  of  the  statements.  .  .  .  While  a  party 
may  be  called  upon  in  many  cases  to  speak  where  a 
uliarge  is  made  against  him,  and  in  failing  to  do  so 


CIVIL    PROCEDURE    REPORTS.  443 

Learned  v.  Tillotson. 

ma 3'^  be  considered  as  acquiescing  in  its  correciness, 
his  omission  to  answer  a  written  allegation,  whether 
by  affidavit  or  otherwise,  cannot  be  regarded  as  an 
admission  of  the  corjectness  thereof  and  that  it  is  true 
in  all  respects.    Reasons  may  exist  why  hemny  choose 
and  lias  a  right  to  remain  silent  and  to  vindicate  him- 
self at  some  future  period,  and  on  some  more  oppor- 
tune occasion."     We  are  unable  to  see  vvhy  the  case 
cited  is  not  directly  in  point.     The  affidavits  consti- 
tuted a  statement  by  the  plaintiff,  which  was  not  con- 
tradicted, no  motion  having  been  made  to  vacate  the 
order  of  arrest,  upon  the  ground   that  the  facts  were 
not  true  and  no  exception  having  been-  taken  to  the 
same.     The  facts  are  ver^^  similar  in  reference  to  the 
letter  of  the  plaintiff  in  the  case  at  bar,  and  if  silence 
could  be  regarded  as  an  admission   of  the  correctness  • 
of  the  statement  made,  the  same  rule  is  applicable  to 
each  case  and  the  decision  last  cited  is  controlling. 
Numerous    other    cases   tend   in   the   same  direction 
(Waring  ».  United  States  Tel.  Co.,  4  Daly,  238  ;  An- 
thorne  i^.Coit,  2  Hall.  40;  Robinson  v.  Fitohburg  & 
W.  R.  R.  Co.,  1  Oray   [Mass.']  92;  Hill  v.  Pratt,   29 
VI.  119  ;  Peo[)le  v.  Lookwood,    3  Ilun.,  304  ;   Fairlie 
V.  Denton,  3  CaiT.  &  P.  \Eng.  N.  F.^^  103;  Draper  v. 
Crofts,   \bMees.  &  Wds.  [Eng.  Excr.]  166;  Meguire 
«w  Corvvine,  3  Mac  Arthur  [Z).  C]  81). 

From  an  examination  of  the  cases,  we  think  that  a 
distinction  exists  between  the  effect  to  be  given  to  oral 
declarations  made  by  one  party  to  another,  which  are 
in  answer  to  or  contiadictoiy  of  some  statement  made 
by  the  other  party  and  a  written  statement  in  a  letter, . 
written  by  such  party  to  another.  It  may-well  be  that 
under  most  circumstances  what  is  said  to  a  man  to  his 
face,  which  conveys  the  idea  of  an  obligation  upon  his 
part  to  the  person  addressing  him,  or  on  whose  behalf 
the  statement  is  made,  he  is  at  least  in  some  measure- 
called  upon  to  contradict  or  explain  \  but  a  failure  ta 


4U  CIVIL    PROCEDURE     REPORTS. 

Learned  v.  TiUotson. 

answer  a  letter  is  entirely  different,  and  there  is  no  rule 
of  law  which  n^uires  a  person  to  enter  into  a  oorres- 
l)<)nden(;e  with  another  in  reference  to  a  matter  in  dis- 
jjiite  between  them,  or  which  holds  that  silence  should 
be  ref^.irded  ms  ;ih  admission  against  the  party  to  whom 
the  letter  is  addressed.  Such  a  rule  would  enable  one 
party  to  obtain  an  advantage  over  another  and  has  no 

sanction  in  the  law.  We  think  that  the  court  on 
['"J    tlie  trial  at  special  terra,  i)ropeiiy  held   that  the 

letter  was  inadmissible  except  for  the  purpose  of 
showing  a  deniiind,  and  that  the  judge,  upon  the  jjrevi- 
oiis  trial  of  the  issue,  which  was  submitted  to  the  jury, 
erred  in  receiving  the  same  in  evidence. 

There  Avas  no  error  in  any  of  the  findings  of  the 
tjourt,  upon  the  trial,  and  the  judgment  should  be  af- 
ifrmed. 

JLll  concar,  except  Danfokth,  J.,  absent. 


INDEX. 


P»ge 
ABATEMENT  AND  REVIVAL— Revival  and  continuance  of 

action  in  case  of  death 144 

May  be  l)y  assignee  of  executor  or  administrator 144 

Effect  on  counterclaim  set  up  in  answer 144 

ACCOUNTING — When  petition  for,  of  executor  not  denied  on 

the  ground  of  ladies '. 85 

When    accounting  of  executor,  administrator   or   guardiivn 

should  be  opened 16 

When  not  opened . .    .  389 

See  SUUROGATE. 

ACTION — When  party  in  interest  not  party  to  action  may  apply 
to  court  for  protection  af  his  interest 90 

Joinder  of,  for  obtaining  signature   to  bond   by  false  repre- 
sentations with  one  for  conversion 121 

ADMINISTRATOR— See  Executou  and  Administrator. 

AFFIDAVIT— Who  authorized  to   take  without  the  State.  .20S,  268 

Form  of  certifirtite  to 117,  2G:3,  208 

Ellect  of  absence  of  such  certificate  on  order  for  service  by 

publication    117 

When  absence  of,  of  no  prior  applicntion  for  order  of  arrest 

or  warrant  of  attachment  does  i.ot  imperatively  require  vaca- 
tion thereof 263 

AGSNT  — See  Principal  and  Agknt. 

ALIENS — Inherit  the  same  interest  in  real  est;ite  as  citizens,  sub- 
ject to  be  defeated  by  the  State   326 

ALLOWANCE— Basis  of  extra,  in  action  for  causing  death    ...   £22 

Wliat  is  sufficient  monetary  basis  fo"r  extra  allowance 25 

ANSWER— See  Pleadings. 

APPEAL — From  final  judgment  overruling  demurrer  brings  up 
order  overruling  demurrer  for  review 121 

Power  to  amend  complaint  on 158 

[445] 


fil46  '^  INDEX. 


'- Wlien  judgment  not  reversed  where  its  correctness  depends 

on  credibility  of  witnesses 158 

Reducing  judgment  on  ... , 158 

When  both  parties  request  tlie  direction  of  a  verdict  there  is 

no  question  of  fact  to  l<c  reviewed  by  the  appellate  court ^6 

~ —  Whut  brought  up  for  review  by  appeal  from  order,  denying 

resettlement 74 

Report  of  commissioners  in  proceedings  to  Hcquire  land  for 

railroad  purposes,  how  corrected 302 

~ — See  Findings;  CaCRT  of  Appeal:    Cocrt  of  Common 

Pleas;  Justice  of  tiik  Peace;  Uj^dertakino. 

-APPEARANCE— What  amounts  to 117 

Wlien  order  discontinuing  action  .ineffectual,  after  special 

appearance  of  defendant 305 

'  ARRSST — When  order  of,  not  vacated  where  pritn/t  facie  case  is 

made  out .203,  308 

When    complaint  or  .affidavit  stiUing   its   contents,    to    be 

.    presented  on  application  for  order  of 77 

« When  absence  of  affidavit  of  no  prior  application  for  order 

of,  does  not  i-cquire  vacation  of  the  order 268 

Party  to  action  when  not  liable  for  false  arrest  directed  by    ' 

his  attorney 307 

See  Contempt;  Execotion  against  tre  person. 

ASSIGNMENT  FOR   BENEFIT.  OF   CREDITORS— Wlien 

com  plete ....    401 

- — —  Necessity  of  recording 401 

See  EXAMINATK)N  BEFORE  .TRIAL. 

-ATTACHMENT — When  not   vacated    where  prima  facie  ca?e 

is  made  out .    203,  368 

"Wiierk  defects  in  afHdavit  on  which  issued  are  not  jurisdic- 
tional they  cannot  be  raised  in  collateral  action 401 

Instance  of  affidiivit  on  which,  granted  held  insufficient..  .    3G6 

When  absence  of  affidavit  of  no  prior  ^ipplicntion  not  fa'al 

defect 2(58 

■ When, will  not  lie 79 

Judgment  or  statutory  liability  not  contract -70 

Mocie  of  levying  on  promissf)ry  note,  etc 1(54 

Ellect  of  prior  rr.iudulcnt  transfer   1G4 

■- Levy  on   instrument  for  payment  of  money  made  only  by 

taking  it  into  actual  custody 104 

~ —  See  Pleadings;  Complaint, 
.  ATTORNEY — Power  of,  to  settle  and  discontinue   action  and 

satisfy  judgment 315 

—  •  Wlien  liable  for  costs. 294 


Tag* 

Soe  Etidence  ;  Refekekce. 

'-AUCTIONEER — Liability  of  sureties  on  bond  of,  givpn  on  grant 

of  license  in  city  of  New  York 238 

Suit  on  bond,  by  whom  brought   238 

-BANKRUPTCY— Debt  not  disciiarged   by  discharge  in,  when 

creditor  is  fraudulently  omitted  fiom  sciiedules 63 

When    judgment  not  discharged  of  record  on  account  of 

debtor's  discharge  in , . . . 148 

•BILL  OF  PARTICULARS  — Stay   in  order  for,  Ao  be  vacated 

f)n  service  of 188 

When  bill  of  particulars  required  inaction  by  mutual  benefit 

•society  agnmst   its  late  treasurer  for  moneys  alleged  to  have 
l)i:en  mis:i||)ropriated  by  him  or  througli  his  negligence 161 

When  ordered  in  action  by- assignee  against  sheriff  for  con- 
version     330 

■ ^  When  ordered,  in  action  for  damages  to  real  property,  of 

difense  alleging  negligence,  and  waiver 414 

SOND — See  Auction eek. 

-BROKER— See  PiaxeiPAL,  and  Agent;  Lfm it ations  to  Action. 
CERTIORARI — Assessors  of  town   to  be   designated  in,  by  in- 
dividual names -297 

Effect  of  omission  of  seal 297 

Amenilment  of,  when  seal  omitted '387 

.CITY  COURT  OF  NEW  YORK— What  counterckims  may  be 

pleaded  in  action  in,  brought  by  executor 357 

See  Court  of  Common  Pleas;  Judgment. 

COMPLAINT — See  Arrest;  Pleadings. 

CONTEMPT— Power  to  punish  for,  is  branch  of  common  law. .     43 

When  criminal,  punishable  civilly -250 

Form  of  warrant  of  commitment   250 

Punishment ;  amount  of  tine 43,  350 

■ Review  of  adjudication  in  proceeding  to  punish  for 350 

Perjury  is '. 43 

When  surety  to  undertaking  on  arre-;t,  guilty  of -33 

Ellect  of  appeal   from  judgment  in  action  on  which  imdcr- 

taking  was  given 43 

See  SUKROaATK. 

-CONTINUING  ACTION— See  Ae.\tement  AND  Revi-val. 
CONTRACT— When  not  adjudged  illegal 263,  368 

Ellect  of  doing  business  under  fictitious  name 263,  368 

Jmigment  or  statutory  liability  is  not 79 

CORPORATION  —Power  of  court  in  proceedings  for  voluntary 

dissolui ion  of 342 

Appointment  of  receiver,  when  may  be  made 843 


448  INDEX. 

Page 

Contents  of  rpport  of  referee  or  decision  of  court  in   such 

proceedings 342 

Determiniitjon   of  title  of.  claini:ints   of  ofHcc  of  trustee  of 

religous,  cannot  bo  mude  in  equitable  action  brought  by  one 
ciainiaut  or  set  of  claimants 400 

WliHt  \i  prima  facie  evidence  of  election  of  such  trustees. . .   406 

See  County  Couhts;Fo«eclosurk;  Injdnction;  Receiveh; 

U.NDEHTAKING. 

COSTS— Liability  for,  created  by  section  3247  of  the  Code  of 
Civil  Procedure,  is  not  contract   79 

Liabibty  of  attorney  for 371 

See  Ali-owance;  Equity;  Justice  of  the  Peace;  Plead- 
ings; Complaint;   IIefeuknce. 

C0UNTI3RCLAIM — S(  e  Abatement;   Pleadings. 

•COUNTY  COURTS— Jurisdiction  of,  of  actions  against  domestic 
corporations     348 

Objection  to,  how  raised 348 

Waiver  of 348 

Instance   of  ease  in   which  want  of  jurisdiction    did    not 

appear  on  face  of  complaint 348 

COURT  OP  APPEAL — When  will  consider  case  upon  cause  of 
action  disclosed  by  evidence  rather  than  upon  tliat  set  up  in 
pleail  i  ngs 1 

Reviewing  facts  on  appeal  to 425 

COURT  OP  COMMON  PLEAS— On  appeal  to,  from  N.Y.  City 
Court  from  jiid<:;mcnt  directing  new  trial,  ap)>ellant  must  con- 
sent to  final  judgment  or  court  is  without  jurisdiction 191 

-: "Where  consent  intentionally  withheld,  court  cannot  supply 

omission,  nunc  pro  tune 191 

Jurisdiction  not  conferred  on  appellate  court  by  consent. . .    191 

Discretionary  orders  of  N.  Y.  City  Court  not  reviewable  on 

appeal  to 126 

Relation  of.  to  N.  Y.  City  Court 120 

S(  e  Judgment. 

DEATH — Measure  of  damages  in  action  for  cr.using 353 

Wliat  is  amount  of  recovery  in  action  for  causing 222 

See  Abatement  and  Revival;   Allowance. 

DEMURRER— See    Ai'I'Eal  ;    Pleadings. 

DISCONTINUANCE  OP  ACTION— Power  of  attorney  to  con- 
sent to 815 

Effect  of,  on  cause  of  action  where,  in  terms,  made  on  a  set- 
tlement  315 

See  Appearance;   Pleadixos — Complaint. 

DISCOVERY— See  Inspection. 


'IXDEX.  449 

Page 

DISTRICT  OOtJRT  IN  CITY  OP  NEW  YORK— Right  of 
party  to  be  heard  by  counsel  on  submission  of  case,  cannot  be 
denied  by  justice  althougli  he  may  limit  time  of  oral  argument  416 

See  ExKCDTioN  against  the  Person. 

EJECTMENT — Damages  on  recovery  of  real  property  in 89 

— —  What  improvements  may  be  set  oflE 89 

What  amounts  to  ouster 5J9 

EQUITY — When  has  jurisdiction  of  action  to  set  aside  judgment  191 

Party  liable  for  costs  of  action  brought  for  his  benefit,  may 

move  to  set  aside  void  judgment  therein. 

Determination  of  title  of  rival  chiimants  of  office  of  trustee 

of  religious  corporation  cannot  be  made  in  equitable  action 
brought  by  one  claimant  or  set  of  claimants 406 

ESCHEAT— See  Aliens, 

EVIDENCE — When  testimony  of  personal  transactions,  etc. 
not  excluded  in  action  against  administrator  on  the  ground  of 
interest  of  witness 71 

What  evidence  of  interest  necessary 71 

In  Surrogate's  Court  such  testimony  must  be  objected  to  by 

executor,  administrator  or  survivor  of  decedent . . . . 63 

Objection  by  creditor  not  sufficient 63 

Testimony  as  to  transaction  between  a  party  and  a  deceased 

person  through  whom  both  parties  claim,  when  should  be  ex- 
cluded    235 

When  letter  may  not  be  received  in,  on  behalf  of  party  who 

wrote  it 425 

Burden  of  proof  of  consideration  in  action  on  undertaking 

on  appeal  defective  in  form   226 

Proof  of  value  of  professional  services  in   an  action  by  an 

attorney  therefor  where  a  sum  in  gross  is  claimed   294 

Admission  on  which  new  trial  granted  is  evidence  against 

party  making  it,  on  such  new  trial 173 

Proof  of  partial  satisfaction  of  cause  of  action  sounding  in 

tort  by  one  of  two  joint  tort  feasors  admissible  in  mitigation  of 
damages 135 

EXAMINATION  OP  PARTY  BEPORE  TRIAL— In  action 
to  recover  chattels,  the  sale  of  which  is  alleged  to  have  been 
procnfed  by  fraud 153 

In  such  case  there  may  be  an  examination  of  an  assignee  for 

benefit  of  creditors 153 

EXECUTION— Time  of  sheriff  to  return,  extended  by  stay  of 
proceedings 173 

See  Supplementary  Proceedings. 

EXECUTION  AGAINST  THE  PERSON— When  may  issue 
Vol,  VI.— 29 


450  INDEX. 

Paga 
out  of  N.  Y.  District  Court  without  proof  on  trial,  of  facts 
autliorizin^ 184 

EXECUTOR  AND  ADMINISTRATOR— Subrogation  of  claim 
of,  for  money  paid  to  redeem  real  property  from  tax  sale,  in 
place  of  lien  of  tuxes 63 

Power  of  Surrogate  and  of  Supreme  Court  to  open,  vacate 

or  set  aside  accounting  of 15 

Effect  of  agreement  between  heirs  on  liability  of 15 

See  Abatemekt;  Accounting;  City  Coubtof  Nhw  Yoejc; 

Evidence;  Laches;  Sukuogate. 

FICTITIOUS  NAME— See  Contuact. 

FINDINGS — How  disposed  of  by  court  before  which  action 
tried 334 

Effect  of  failure  to  make,  because  deemed  unnecessary 324 

FORECLOSURE— Questions  which  cannot  be  tried  in  action 
of 836,  363 

Parties  to  action  of 336,  363 

Adverse  claimants  not  proper  parties  to 336,  363 

Action  for,  of  mortgiige  given  to  trustees  to  secure  bonds 

by  whom  brouglit ©0 

FRAUD— What  amouuts  to,  in  contracting  liability 148 

Action  for  fraudulently  obtaining  signature  to  bond  is  for 

injury  to  property ....    121 

Special  allegation  of  damage  not  necessary 121 

GUARDIAN — See  Accounting. 

GUARDIAN  AD  LITEM— Effect  of  failure  to  acknowledge 
consent  to  be 305 

Sec  SuimoGATE. 

HABEAS  CORPUS — To  secure  custody  of  child,  by  whom 
issued 299 

Effect  of  failure  to  state  in  petition  that  person  in  whose  be- 
half writ  is  issued  is  not  detained  by  virtue  of  a  final  order  of 
a  competent  tribunal,  etc 399 

HEIR— See  Aliens. 

HUSBAND  AND  WIFE— Liability  of  husband  for  wife's  torts.   135 

See  Parties  to  action. 

INFANT — Place  of  residence  of,  how  determined 216 

See  GuAHDiAN  ad  litem  ;  Summons  ;  Sukuogate, 

INJUNCTION — Order  staying  actions  and  proceedings  when  not 
void  because  too  broad   106 

Power  of  court  to  restrain  actions  and  interference  with 

property  when  receiver  has  been  appointed 106,  118 

Application  of  Code  to  such  order 106 


'INDEX.  451' 

Page 
— —  PoTver  of  court  to  grant,  restraining  interference  with  acting 

trustees  of  religious  corporations  by  rival  claimant  of  office. . .  400 

When  granted 406 

ElTect  of  insufficient  service  of  injunction  order. 106 

Motion  to  vacate  order  where  made 106 

When  vacated  as  to  attaching  creditors 113 

See  Execution. 

INSPECTION— When  order  for,  of  books  granted 83 

JOINDSR  OP  ACTIONS— See  Action  ;  PhKA-DmoB— Complaint. 

JUDGMENT- Effect  of  satisfaction  of 315 

Tlie  filing  of  remittitur  and  docketing  inN.  Y.  city  court  of 

void  judgment  rendered  in  N.  Y.  court  of  common  pleas  does 

not  give  it  nevir  vitality 191 

See  Bankruptcy;  Equity;  Justice  op  the  Peace. 

JURISDICTION— See    Appeal;    County    Court;   Court    of 

Common  Pleas;  Order. 
JUSTICE  OF  THE   PEACE— Provisional  remedies  in  courts 

of 253 

Effect  of  error  in  replevin  process  on  judgment 253 

Effect  of  error  in  costs  and  mode  of  correcting. ...    253 

Testimony  taken  in  court  of,  on  adjourning  case,  will  not 

sustain  judgment  unless  read  in  evidence 28 

When  offer  to  reduce  verdict  may  be  made 56 

Effect  of  such  offer  made  after  judgment 56 

Power  of,  to  change  record 56 

Rigiit  to  costs  on  appeal 56 

Mode  of  service  of  notice  of  appeal  from  judgment  of 333 

Curing  defective  service  7iunc  pro  tunc 333 

Action  to  recover  chattel  when  commenced  in  court  of 253 

LACHES — Effect  of,  on  proceeding  for  accounting  of  executor, 

etc 85 

See  Security  for  Costs. 

liANDLORD  AND  TENANT — See  Su.mmary  Proceedings. 
XIMITATIONS   TO  ACTION— When    coming   into  the   State 

does  not  amount  to  a  "  return  "  thereto 307 

Application  of  statute  of  limitations  to  broker's  contract. . .       1 

Wlien   proceedings  for  accounting  in  surrogate's  court  not 

barred  by 85,  83 

MARINE  COURT— See  City  Court  op  New  York. 
MARRIED  WOMAN— See  Parties  to  Action. 
MORTGAGE- See  Foreclosure. 

MOTION— Renewal  of 178 

What  amounts  to  new  proof  on 178 

-— —  Report  of  referee  to  take  proof  on,  when  should  stand 178 


453  INDEX 

NAMS— See  Contract. 

ORDER— Re-settlement  of : 74 

When  properly  made  by  court 74 

Void,  may  be  disregarded 90 

Made  by  judge  not  having  jurisdiction  is  absolutely  Toid.       90 

ORDER  OP  ARREST— See  Arrest. 

ORDER  TO  SHOW  CAUSE— Specifying  irregularities  in 188 

OUSTER— See  Ejectment. 

PARTIES  TO  ACTION— Husband  not  proper  party  defendant 
in  action  against  married  woman  for  slander 51 

When  all  obligors  in  auctioneer's  bond  not  necessary 238 

See  Action;  FoRECiiOSURE. 

PERJURY- Is  a  contempt  of  court 43 

Instance  of  case  in  which  an  affijiut  was  guilty  of 43 

PLEADINGS— Duty  of  court  to  give  party  benefit  of  cause  of 
action  established  by  evidence  notwithstanding  insufficiency 
of  pleadings 1 

See  Court  of  Appeals. 

Complaint.     Cannot  be  amended  on  trial  so  as  virtually  to 

discontinue 'action  as  to  a  defendant  without  payment  of  costs.  336 

Effect  of  service  of,   after  service  of  summons  and  before 

appearance  of  defendant 69 

Not  necessary  to  aver  malice  or  want  of  probable  cause  in 

action  on  undertaking  given  to  procure  warrant  of  attachment.     26 

Allegations  which  will  not  admit  proof  that  attachment  was 

void 26 

A  cause  of  action  for  obtaining  the  execution  of  a  bond  by 

false  representation,  may  be  joined  with  one  for  conversion, 
botli  being  for  an  injury  to  property 121 

Not  necessary  to  allege  special  damages  in  action  for  ob- 
taining the  execution  and  delivery  of  a  bond  by  false  repre- 
sentations     121 

Allegations  of  fraudulent    intent   implies  that  defendant 

knew  representations  to  be  false 131 

Prior  to  amendment  of  Code  in  1879  not  necessary  to  plead 

fraud  in  contracting  liability 148 

Instance  of  an  action  to  set  aside  conveyance  and  agreement 

to  re-convey  on  the  ground  that  they  are  an  usurious  mortgage.  286 

See  Action;  Appeal;  Fuaud. 

Answer.     Former  recovery,  when  to  be  pleaded 89 

Denial  in,  may  be  on  information  and  belief 54 

When  verification  of,  may  be  omitted 30 

Stay  of  proceedings  not  extension  of  time  to  answer 188 

■     C<funUrelaiin.     When  sufficient 286 


INDEX.  458 

'— —  For  rent  in  action  to  declare  deed  mortgage  and  for  ac- 
counting of  rent  when  proper 286 

See  City  Court  of  New  York. 

Verification.  Taken  out  of  state  without  certificate  re- 
quired in  sucli  cases  pleading  to  be  regarded  as  unverified. . . .   117 

PRINCIPAL  AND  AGENT— EflEect  Of  concealment  by  agent 
■of  name  of  principal 1 

Rights  and  liabilities  Of  broker  Who  conceals  name  of  prin- 
cipal        1 

Sec  LiMiTATroNS  to  Action. 

PROCEEDINGS    SUPPLEMENTARY  TO    EXECUTION— 

See  SOPPLEMENTARY    PROCEEDINGS. 

PROVISIONAL  REMEDIES— When  one  of  two  graeted  in 
same  acl ion  to  be  vacated 868 

RAILROAD  — See  Appeal;  Corporation. 

REAL  PROPERTY- See  Aliens;  Ej£CTME3IT. 

RECEIVER — Motion  for  appointment  of,  of  corporation  to 
be  made  in  county  in  or  adjoining  which  principal  office 
is 90 

Power  of  supreme  court  to  fippoint,  of  foreign  corpora- 
tion  106,   113 

Notice  to  attorney-general  not  necessary ..   113 

Motionfor  appointment  of,  where  made 106 

Motion  to  vacate  order  appointing,  v;here  made . .   106 

Who  appointed  in  case  of  pj'ior  appointment  by  void  order.     90 

See  Corporation  ;   Supplementary  Proceedings. 

REFEREE— See  Reference. 

REFERENCE — Wlien  compulsory,  will  not  be  ordered  in-ac- 
tion  by  attorney  for  professional  services 294 

Report  of  referee  on  motion 315 

Taxation  of  costs  ot  such  reference :   315 

— —  What  amounts  to  sufficient  delivery  of  report  of  referee  to 
entitle  liim  to  his  fees  and  prevent  reference  being  closed. . . .   418 

Sec  Motion. 

RELIGIOUS  CORPORATIONS— See  Corporations;  Injunc- 
tion. 

REPLEVIN — See  Justice  of  the  Peace, 

RES  ADJUDIOATA— See  Pleadings,  Ansuier ;  Summary 
Proceedings. 

RESIDENCE — What  presence  in  State  does  not  constitute ....  371 

See  Infant. 

REVIVAL— See  Abatement  and  Revival. 

SECURITY  FOR  COST— When  ordered  on  ground  ©f  non- 
residence  <.^. . . .   156 

Laches. 156 


454  '  INOEX. 

Pago- 

— —  Attorney  when  liable  for  costs  because,  not  given 294 

See  Costs. 

SERVICE— See  Affidavit;  Pleadings,  Complaint;  Summons. 
8ERVIOE  BY  PUBLICATION- See  Affidavit;  Summons. 
SHERIFF — Substitution  of  iudemnitors  for,  in  action  against, 

for  wrongfully  taking,  etc.,  personal  property,  wlien  properly 

ordered. 377- 

Liability  of  indemnitors 377. 

Waiver  of  objection  that  bead  was  not-  given  until  after 

cominencem«int  of  action 377  ' 

Sue  Bill  of  Particulars  ;  Execution. 

SLANDER — See  Parties  to  Action. 

STATUTE — In    construing,    judge    vested    with   authority    to 

disiegard  the  letter  in  order,  in  a  given  case,  to  attain  the  ends 

of  just  ice 307 

STAY  OF  PROCBEDINQS— See  RaL  OP  Particulars;  Exe- 

cution;  Pleadings,  Answer. 
SUBROGATION— See  Abatkment  attd  Revival. 
SUMMARY  PROCEEDINGS— Tenant  cannot  deny  landlord's 

title  in 286- 

When   adjudication  as   to,  in  such    proceeding  not  res  ad- 

judicata 286 

SUMMONS— When  substituted  service  of,  ordered 3G0 

Time  to  answer  when,  so  served 366 

Proof  on  entry  of  judgment  oo 306  • 

Provisions  of  code  relating  to  service  of,  by  publication 

equally  applicable  to  infantas  to  an  adult ,,  . . .   216 

Infant  when    estopped   fr^)m  denying    regularity    of   such 

service 261 : 

SUPPLEMENTARY  PROCEEDINGS— Slode  of  compelling 

production  of  books  on  examination  in 360,  862 

Corporation  may  be  compelled  to  produce  books,  etc 363' 

Examination  in,  where  debtor  hiis  made  nf-Mgnment  for  bene- 
fit of  creditors  not  confined  to  property  acquired  subsequent 

to  assignment 232 

Order   appointing  receiver   in,    in    place  of  one   who   Ims 

resigned,  properly  made  by  court  and  not  by  judge 74 

Notice  of  Jipplicatioii  for  receiver  in,  when  necessary :>6 

Receiver-may  be  appointed  in,  either  before  or  after  return 

of  execution  and  on  examination  of  third  party   304 

NoTB  ON  Appointment  of  Receiver  in  Supplementary 

Proceedings 306 

When  and  by  whom  appointed,  306;  notice  of  application, 

897;  oztendiog    former  receivership,  398;   filing  order,   3d94 


INDEX,  455 

Pago 

r    security,  399;  removing  receiver,  400;  effect  of  appointment 

on  proceedings,  401. 
SURROGATU — Jurisdiction  of,  to  determine  rights  of  legatees  245 

EtTect  of  irregular  service  cf  citations  in  surrogates  court. .     15 

Appointment  of  guardian  ad  litem .       15 

Wlien  decree  made  on  accountings  of  executor,  trustee  and 

guardian  will  not  be  opened 389 

Power  of,  to  open  decrees  and  grant  new  hearing 389 

Power  of,  to  punisli  for  contempt. . . .  •. 250 

See  Evidence  ;  ErEcuTou  akd  Administrator. 

TORT — Effect  of  partial  satisfaction  by  one  of  two  joint  tort- 
feasors     135 

See  Husband  and  Wife;  Parties  to  Action. 

TRIAIi — What  amounts  to  waiver  of  notice  of 82 

Wiio  may  move  case  for 83 

Verdict   of   jury   on    specific   questions   of  fact  in   action 

triable  by  court 425 

• Power  of  court  to  disregard 435 

UNDERTAKING — Form    of,    on  appeal  when  guaranteed   by 

corporation  authorized  to  guarantee  undertakings 259,  886 

When   guaranteed   by   corporation,  must  be  executed  by 

party 169 

Justification     of     corporation      g"jaranteeing,     and      ap- 
proval   1(59,  171,  386 

Although  defective  in  form,  it  may  be  supported  as  against 

the  sureties  by  any  sufficient  consideration 226 

Form  of,  to  replevy  cliattels  in  action  in  justice's  court 253 

When  reversal  of  judgment  as  to  one  of  three  defendants 

amounts  to  breach  of  condition  of,  on  appeal 226 

Effect  on  undertaking  on  arrest  of  appeal  from  judgment  in 

action  in  whicli  it  was  given. 43 

Si-e  Contempt;  Evidence;  Pleadings,  Complaint.  ' 

USURY— See  Pleadings,  Complaint. 
VERDICT— See  Trial. 
VERIFICATION— See  Pleadings. 

WILL — When  aliens  sliould  be  cited  to  attend  probate  of 326 

When  admitted  to  probate  against  testimony  of  subscribing 

witness 128 

WITNESS — See  Examination  of  Party  beforb  Trial. 


TABLE    OF    CASES 


BEPORTED    IN   VOLUMES  1    TO   6    OP    THESE   REPORTS 
WHICH  HAVE  BEEN 

AFFIRMED,  REVERSED,  MODIFIED,  ETC. 


Reported 
N.  Y.  Civ.  Pro.  R. 
Vol.  Pago 

Bailet,  In  re 4  140 

Order  affirmed  with  $10  costs,  and  disbursements 
(Sup.  Ct.,  1  Dep't.,  Gen'l  T.,  Jany.  1884),  UN.  T. 
Civ.  Pro.  253. 

Barnard  t.  Onderdonk 2  294 

Judgment  affirmed  with  costs  by  court  of  appeals 
Feby.  10,  1885. 
Benqtson  v.  Thinovatxa  Steamship  Co       .        .        .3  263 

Judgment  affirmed  witli  costs  (Sup.  Ct.,  2  Dcp't., 
Gen'l  T.,  Sept.  1883),  4  N.  T.  Civ.  Pro.  260. 

BoGERT,  Estate  of 4  441 

Decree  of  surrogate  affirmed  with  costs  to  appellant 
(Sup.  Ct.,  2  Dcp't.,  Gen'l  T.,  Sept.  1884),  6  N.  T. 
Civ.  Pro.  128. 

BowE  ».  Campbell 2  2Z% 

Judgment  affirmed  on  opinion  of  Van  Vorst,  J., 
and  on  authority  of  Fhick  v.  State  of  New  York, 
29  Hun,  280  (Slip.  Ct.,  1  Dep't.,  Gen'l  T., 
Marcli  1884),  32  Uun,  243. 

Boyd  c.  Smith 8  847 

Order  affirmed  with  costs  (Ct.  App.  June  1883),  8 
N.  T.  Civ.  Pro.  416. 
.Buckley  v.  Gotta  Perch  a  &  Rubber  Man'f'o  Co.       .     3  428 

Appeal  dismissed;  no  opinion  (Ct.  App.  June 
1883),  93  N.  T.  037. 

Clark  v.  Dillon 4  24flf 

Judgment  affirmed  with  costs  by  court  of  appeals 
Nov.  25.  1884. 
[450J 


CASES    AFFIRMED,    ETC.  457 

Imported 
s  N.T.  Civ.  Pro.R 

Vol.  Pag« 

Combs  v.  Oombs 3.  29<i 

Order  reversed,  with  costs  (Sup.  ^Ct.^  4  Dep't., 
Geu'l  T.  1881),  25  Hun,  279. 

Concord  Granite  Cg.  «.  I"kench 8  M 

Judgment  affirmed  with  costs  and  disbursements 
(N.  Y.  Com..  Pleas,  Gen'l  T.,  May  1883),  3  N.  T. 
Civ.  Pro.  445. 

Cooper  v.  Jolly 8  .• 

Order  reversed  (Sup.  Ct.,  4  Dep't.,  Gea'l  T.,  1883), 
30  Hun,   224.     Order  of  general  term  reversing 
order  of  special  term  affirmed,  without  opiiiioa 
(Ct.  A  pp.  June  1884),  96  N.  T.  667. 
Cbossman,  Irvre.  .......     8  M 

Decree  of  surrogate  affirmed  with  costs,  sub  nom. 
Grossman  t).  Grossman  (Sup.  Ct.  2  Dep't.,  Gen'l. 
T,  1883),  30  Hun,  385.  Order  of  general  term 
affirming  suri^ogate's  decree,  affirmed  suh  nom. 
Grossman  «.  Crossnaaa  (Ct.  App.  Feb'y,  1884);  5 
iV.  ¥.  Civ.  Pro.  204. 

Dickenson  «.  The  Mayor 8  98 

Judgment  affirmed  (Ct.  App.  June  1883),  92  Jf.  T. 
584. 

Eekenbrachu.  Erkenbrach .6  184, 

Order    of    gmieral  term  affirmed    (Ct.   App.    Oct. 
1884),  96  N.  T.  456. 
^IRST  Nat'l  Bank- OP  Oswego  ».  Dunn.        .        .        .4  876 

Order  of  general  term  reversing  order  of  Si|)ecial  terra, 
granting  motion,  ;eversed,  and  order  of  special 
term  affirn>ed  (Ct.  App.  Oct.  1884),  20  .iV.  T. 
Weekly  Dig.  17. 

Fitzgerald  v.  Quahn. ^  1  .278 

Judgment  and  order  reversed  (Sup.  Ct.  5  DepH,, 
Geu'l  T.- Oct.  4884),  83  Hun,  052. 

Gates  v.  Canfield 2  254 

Order  reversed  (Sup.  Ct.  4  Dep't.,  Gea'l  T.  1883), 
28  Hun,  12. 

Gross  v.  Clark.  , 1  17 

Order  affirmed  with  costs  (Ct.  App.,  Dec.  1881),  1 
.y.  T.  Civ.  Pro.  464. 

"Hall  v.  U.  S.  Reflector  Co 4  ■        i  148 

Order  reversed  with  $10  costs  and  disbursements, 
(Sup.  Ct,  1  Dop't,  Gen'l  T. ;  Jan.  1884),  31  Hun, 
609.  -Ordar  of  .general  term  affirmed  without 
X)piaion  (Ct.  App.  May  6,  1884),  96  i^.  Y.  629.^ 


458  CASES    AFFIRMED,    ETC. 

Reported 
N.Y.  Civ.  Pro.  B. 
Vol.  Page. 

Hates  v.  Davidson .        .6  877 

Orders  of  general  and  special  terms  reversed  and 
motion  denied  with  costs  in  all  the  courts  (Ct. 
App.,  Jan'y  20,  1885),  to  be  reported,  7  N.  Y. 
Civ.  Pro. 

HeiN  V.  Davidson 5  24- 

Order  of  general  term  reversed  and  order  of  special 
term  affirmed  with  costs  (Ct.  App.  June,  1884), 
5  N.  Y.  Civ.  Pro.  391. 

Hrjgins  v.  Chrichton 3  817 

Judgment  affirmed  with  cost,  by  Court  of  Appeal, 
Jany.  20,  1885. 

H6LSMAN  9.  St.  John 2  48 

Order  of  geoeral  term  affit-ming  order  of  special 
term  reversed  (Ct.  App.  1882),  90  JV.  Y.  461. 

HtOHCs  V.  Hughes 2  189^ 

Judgment  affirmed,  with  costs  (Sup.  Ct.  1  Dept. 
188;J),  80  Mun,  349. 

James  v.  Shea .     2  358 

Judgment  and  order  affirmed  with  costs,  by  Court 
of  Appeals,  Jany.  20,  1885. 

Little  v.  Lynch  6-  216- 

Order  reversed  with  costs  and  disbursements  and 
order  granted  denying  motion  (Sup.  Ct.  1  Dept. 
GenL  T.  Jany.  1885),  6  iV".  Y.  Civ.  Pro.  418. 

MeNULTY   V.  SCOLLEY 4  250 

Order  affirmed  (Ct.  App.  March,  1884),  95  JV.  ,r. 
243. 

Manning  t.  Gould 1  21ft^ 

Judgments  of  general  and  special  terms  reversed 
and  new  trial  ordered;  costs  to  abide  the  event 
(Ct.  App.  Oct.  1882),  3  N.  Y.  Civ.  Pro.  58. 
Market  Nat'l  Bank  of  New  Youk  v.   Pacific  Nat*!* 

Bank  of  Boston 2  880 

Order  reversed,  with  costs  (Sup.  Ct.  1  Dept.  Gon'l 
T.  1883),  30  Hun,  50.  Order  of  general  terra 
reversing  order  of  special  term  affirmed  on  opin- 
ion in  llaynor  v.  Pacific  Nat'I  Bank,  93  If.  Y. 
871  (Ct.  App.  Oct.  1683),  93  N.  Y.  648. 

Martin  v.  Rector 2  184 

Order  reversed    (Sup.  Ct.  8  Dep't,  Gen'l  T.  1883), 
28  Eun,  409. 
Mktropoliian  Concert  Ca  «.  Abbjbv         .       .       .5  86 


CASES    AFFIRMED,    ETC.  45^^ 

Reported 
N.  Y.  Civ.  Pro.  R. 
Vol.  Paga 

Appeal   to   court    of  -appeals    dismissed,    without 

opinicn  (Ct.  App.  Oct.  1883),  93  N.  T.  654.    " 

MUKTHA  ».  CURLET. 8  86 

Order  of  general  term  reversed  and  order  of  special 

terra  affirmed  (Ct.  App.  May,  1883),  3  iV.  Y.  Civ. 

Pro.  2(56. 

Ordkn  Germania  v.  Devender.  ....     6  161  ^ 

Appeal  to  court  of  appeals  dismissed  October  31, 

1884. 

Orser,  Estate  of 4  139-' 

Decree  of  surrogate  affirmed,  with  costs,  agaiast  tiie 

appellant    (Sup.    Ct.,    2    Dep't,   Gen'l   T.    Dee. 

1883)  sub  nom.  Matter  of  Brown,  31  Hun,  166. 

People  ««  rei  Negus  e.  DwYER ,1  484  •• 

Order  affirmed  (Sup.  Ct.,  2  Dep't,  Gen'l  T.,  1883), 

27  Hun,  548.     Order  of  general  term   affirming 

order  of  special  term,   affirmed   with  costs  (Ct. 

App.  Nov.  1882),  2  iV.  Y.  Civ.  Pro.  379. 

People  v.  N.  Y.  Central  &  Hudson  River  R.  R.  Go.     2  83 

People  v.  N.  Y.  Lake  Erie  &  Western  R.  R.  Co.     3  8a 

Order    reversed   with    costs    and    motion  granted 

(Sup.  Ct.,  1  Dep't,  Gen'l  T. ;  Jau'y  1883),  3  N.  Y. 

Civ.  Pro.  11. 

Phelps  ».  Phelps. 6  117 

Order  affirmed   (Sup.  Ct.,  3  Dep't,  Gen'l  T.  May 

1884),  32  Hun,  643. 

Plimpton  v.  Bigelow.  .        .        .        .        .        .3  183 

Order  of  general  term  reversing  order  of  special  term 

reversed   and  order  of  special  term  affirmed  (Ct. 

App.  Nov.  1883),  93  N.  Y.  592. 

Putnam  v.  Stewart 3  173 

Judgment  affirmed  with  costs  by  Court  of  Appeals, 

November  25,  1884. 

Ramsden  «.  Ramsden 3  416 

Order    affirmed    without    costs     (Ct.    App.   Jany. 

1883),  91  N.  Y.  281. 

Remington  Paper  Co.  v.  O'Dougherty        ...     6  79 

Affiimed,  without   opinion  (Ct.  App.  June   1884), 

96  N.  Y.  666. 

Rockwell  v.  Decker 5  63 

Order  affirmed  with  costs  and  disbursements  (Sup. 

Ct.,  2  Dep't.,  Gen'l  T.,  Sept.  1884),  33  Hun,  343. 

Ross  V.  WiGG  (note) 6  268 

Order    affirmed    with    costs    and    disbursements 


400  CASES    AFFIRMED,    ET€. 

Reported 
N.  Y.  Civ.  Pro.  R. 
Vol.  Page 

(Sup.  Ct,  4  Dep't,  Gen'l  T.,  June  1884),  6  N.  T. 

Civ.  Pro.  203. 

Second  Nat'l  Bank  op  Oswego  v.  Dunn      .        .        .    4  •        878 

See  First  Nat'l  Bark  of  Oswego  v.  Dunn,  rupru. 

SflEUAVooD  V.  Traveleks'  In3.  Co.  .         .         .         .2  ^ 

Order  reversed  with  costs  and  disbursements   (N. 

y.  Com.  Pleas,  Gen'l  T,,  Marcli  1883),  3  N.    Y. 

Civ.  Pro.  281. 

Sktdek  v.  Snyder 4  879 

Order  atfirraed  with  costs   and   disbursements  (Ct. 

App.  May,  1884),  5  N.  T.  Civ.  Pro.  267. 

Thomas  v.  Utica  &  Black  River  R.  R.  Co.  .        .6  858 

Order  affirmed  by  general  term  of  supreme  court 

4th  department,  October  188'4. 

Tim  v.  Smith 3  S47 

Order   afl5:rmcd   witli  costs  XCt.  App.  June,  1883), 

3  N.  T.  Civ.  Pro.  416. 

Tompkins  v.  Smith 1  39d 

Order  affirmed  ,XN.  Y.   Super.  Ct.  Genl.  T.   1882), 

48  N.  Y.  Super.  (J.  &  S.)  113;  S.  C,  «4  Sow.  Pr. 

499.     Order  of    general    term    affirmed  withotit 

opinion  (Ct.  App.  1883),  89  K  Y.  602. 

Tkow  Printing,  etc.  Co.  v.  Hart        .        .        .        .1  240 

Order  affirmed    (Ct  App.  1882),  85  N.  Y.  500. 

Wallace  «.  Feelt        .        .        .        .'       .        .        .1  126 

Affirmed  without  opinion  (Ct.  App.  1882),  88  N.  Y. 

646. 

Williams  B.  Western  Union  Telbgrapu  Co.      .        .1  84 

Order  affirmed  with  costs  (N.  Y.  Super.  Ct.  Genl. 

T.  May,  1881),  1  i^.  Y.  Civ.  Pro.  294. 

White  v.  Rintoul 6  259 

Order  affirmed  with   costs  and   disbursements   by 

general  term  of  N.  Y.  Superior  Court,  December 

1,  1884. 

WOERISHOFFER  V.  NoRTH  RiVER  CONSTRUCTION  Co.         .      «  lit 

Order  affirmed  with  $10  costs  and  disbursements  I 

by  general  term  of  Supreme  Court  '&T&t  depait-  f 

Tinent,  January  8,  1885. 


■i-M- 


